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II.

ORIGIN
Nuisance law originated from the English courts during the late medieval times wherein
owners of lands were anxious to protect their property against encroachment from the public.
Under English common law, an action for nuisance was reserved for an interference with the use
or enjoyment of rights in land.1 Summed up by the legal maxim sic utere tuo ut alienum non
laedas (so use your own so as not to injure others), nuisance law controlled property holders
from using their property in ways that would interfere anothers right to enjoy the use of his
property.
During the late 13th century until the early 15th century in Great Britain, early records 2
would show that complaints for nuisance already existed. These complaints were put to life in a
rare medieval document, the Assize of Nuisance, which substantiate modern thoughts about the
origins of nuisance.
Back in the olden days, nuisance law comprised of building and boundary disputes
between neighbors, such as conveying rainwater onto a neighboring property instead of to the
street; environmental issues such as blocking passageways with rubbish and not properly
disposing of waste as medieval cities had no infrastructure to cope with the disposal of human
waste3; certain groups of people and places such as vagrants and brothels; and certain forms of
speech, such as insults and threats.

Many nuisances might have been nothing more than

1 William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997 (1966)
2 Megan Lane, Asbo in 14th Century Britain, BBC News Magazine, 2011. Retrieved
from: http://www.bbc.co.uk/news/magazine-12847529
3 Id.

something that caused irritation or inconvenience, while others were potentially harmful.

In

other words, nuisance in the medieval times are concerned about social regulation.
During the early period of the Industrial Revolution, nuisance law began to evolve.
Nuisance law prior to that period was concerned mostly about rules and regulations on property.
At the dawn of the Industrial Revolution, nuisance law in the modern sense was undeveloped,
and emission and technology standards in particular were particularly lacking.5
In German Laws, the development of nuisance law during the process of early
industrialization is an example of the gradual transformation of norms from an autonomist
protection of property to a welfarist balancing of interests. 6 In the absence of environmental law,
several classical Roman texts dating back to the second century A.D. gained importance wherein
these texts held emissions to be illegal unless allowed by servitude. 7 As a result of rapid
industrialization, pollution became apparent in German cities. Victims or recipients of polluting
substances could enjoin such emissions through an actio negatoria

and in 1826, it was

4 Natalie J. Ciecieznski. Defining a Community: Controlling Nuisance in Late


Medieval London, Scholar Commons University of South Florida, 2009
5 N. Koch, Die Entwicklung des deutschen privaten Immissionsschutzrechts seitBeginn der
Industrialisierung (Rechtshistorische Reihe 293) (Berlin: Verlag Peter
Lang 2004) p. 2.

6 Claus Ott and Hans-Bernd Schafer. The Dichotomy Between Property Rules and
Liability Rules: Experiences from German Law, Erasmus Law Review, Volume 01
Issue 04, p.46
7 Id. (citing Dig. 8.5.8.5.)
8 Action Negatoria- An action, brought to repel a claim of the defendant to a
servitude in the plaintiff's land. Mackeld. Rom. Law

proposed that the norms on nuisance be developed from a property rule into a legal system for
the comprehensive protection of property. In the first half of the 19 th Century, German courts
developed the action negatoria into an instrument of civil protection against all emissions.9
In American law, during the same period, the first early stages of the Industrial
Revolution brought about drastic and serious environmental degradation in the United States
before the Civil War broke out. Many industries discharged foul, sometimes toxic, solid, liquid,
and gaseous wastes and loud, repetitive, mechanical noises and vibrations into the surrounding
air, water, and land which blackened the air and water and disturbed ecosystems wherever rivers
were dammed for power, wood or coal burned to power production processes, and
slaughterhouses, mills, workshops, manufacturers, mines, and smelters established. 10
As a consequence, a significant wave of industrial revolution litigation in American
history broke out. The common law allowed individuals as well as government agencies to take
legal actions against nuisance. Public nuisance doctrine authorized its government to use its
police power to fine and imprison property holders for or enjoin them from using their property
in ways that injured the rights of many people in the community; private nuisance doctrine on the
other hand gave individuals two rights of redress: the right to sue for monetary compensation for
the injuries they personally suffered as a consequence of another property right holders activities

9 A. Thier, Zwischen action negatoria und Aufopferungsanspruch in U. Falk andH.


Mohnhaupt (eds.) Das Brgerliche Gesetzbuch und seine Richter (Frankfurt am
Main: Vittorio Klostermann 2000) p. 415.

10 Christine Meisner Rosen, Knowing Industrial Pollution: Nuisance Law and the Power of
Tradition in a Time of Rapid Economic Change in 1840- 1864, Environmental History, Vol. 8,
No. 4 (Oct., 2003), pp. 565-597

and the right to sue for injunction to stop the other from continuing to engage in the activity that
caused the injury.11
Due to the rapid changes at that time, American nuisance law evolved into something
more restrictive for industry owners to regulate nuisances. The government then passed
ordinances requiring industry owners to follow certain zoning regulations, for example the
ordinances required slaughterhouses to clean their own premises and to prohibit them from
tossing their wastes in the streets and the principle of separation wherein traditional nuisance
industries to be separated from people living in settled subdivisions, villages, and cities.
One of the earliest cases in American case law that defines nuisance law was the case of
Catlin and others v. Valentine,12 a landmark 1842 New York case wherein the Supreme Court
applied the doctrine of sic utere tuo ut alienum non laedas and granted the plaintiffs a right of
injunction against the defendant from erecting his slaughterhouse. It held that:
The occupation of a building, in a city, as a slaughterhouse is prima facie a nuisance to
the neighboring inhabitants, and may be restrained by injunction. And a general answer of the
defendant denying that a slaughterhouse is a nuisance is not sufficient to authorize the
dissolution of an injunction restraining him from using his building as a slaughter house. x x x
To constitute a nuisance it is not necessary that the noxious trade or business should endanger
the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses
and which renders the enjoyment of life and property uncomfortable.
11 Daniel R. Coquillette, Moses from an Old Manse: Another Look At Some Historic Property
Cases About the Environment, Cornell Law Review 64, June 1979. P. 769-72

12 Catlin and others v. Valentine, May 3, 1842

In a more recent case of Overcash III v. South Carolina Electric13, the Supreme Court
explained the origin of nuisance law. It held:
Under English common law, an action for nuisance was reserved for an interference
with the use or enjoyment of rights in land. William L. Prosser, Private Action for Public
Nuisance, 52 Va. L. Rev. 997 (1966). As noted by the Court of Appeals, modern nuisance law
originates from the medieval English criminal writ of purpresture. The earliest cases involved
purprestures, encroachments upon the royal domain or the kings highway, and were redressed
by the crown in a criminal proceeding. According to Prosser, [t]here was sufficient superficial
resemblance between the obstruction of a private right of way and the obstruction of a public
right of passage to content the judges with calling the latter a nuisance as well. Id. at 998. Thus
was born the public nuisance. Over time, the public nuisance doctrine has been expanded to
cover other invasions of the rights of the general public including violations of the public order,
decency, morals, and health. 58 Am. Jur. 2d Nuisances 39 (2002).
In other words, there is an adaptation of the doctrine of nuisance to modern complex
societies in the same way which, for example a person's use of his property may harmfully affect
another's property, or even to the rights of another person. Modern nuisance law also evolves in
a manner that is far different from the nature of the historic understandings of nuisance law.

13 Karl Albert OVERCASH, III v. SOUTH CAROLINA ELECTRIC AND GAS COMPANY, No.
25990, May 31, 2005.

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