ABATEMENT OF NUISANCES
3. – 2. The injured party may abate a private nuisance, which is created by an act of commission, without notice to the person who has committed it; but there is no case which sanctions the abatement by an individual of nuisances from omission, except that of cutting branches of trees which overhang a public road, or the private property of the person who cuts them.
4. – 2. The manner of abating it. 1. A public nuisance may be abated without notice, 2 Salk. 458; and so may a private nuisance which arises by an act of commission. And, when the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without notice. 2 Barn. & Cres. 311; 3 Dowl. & R. 556.
5. – 2. In the abatement of a public nuisance, the abator need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 458.
6. – 3. As to private nuisances, it has been held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the water used by the latter for his cattle, the party injured may enter on the soil of the other, and abate the nuisance and justify the trespass; and this right of abatement is not confined merely to a house, mill, or land. 2 Smith's Rep. 9; 2 Roll. Abr. 565; 2 Leon. 202; Com. Dig. Pleader, 3 M. 42; 3 Lev. 92; 1 Brownl. 212; Vin. Ab. Nuisance; 12 Mass. 420; 9 Mass. 316; 4 Conn. 418; 5 Conn. 210; 1 Esp. 679; 3 Taunt. 99; 6 Bing. 379.
7. – 4. The abator of a private nuisance cannot remove the materials further than is necessary, nor convert them to his own use. Dalt. o. 50. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, so much. only as is too high should be pulled down. 9 Co. 53; God. 221; Str. 686.
8. – 5. If the nuisance can be removed without destruction and delivered to a magistrate, it is advisable to do so; as in the case of a libellous print or paper affecting an individual, but still it may be destroyed 5 Co. 125, b.; 2 Campb. 511. See as to cutting down trees, Roll. Rep. 394; 3 Buls 198; Vin. Ab. tit. Trees, E, and Nuisance W.