Odger's English Common Law

500 NUISANCE.
(ii.) He can bring an action for damages for nuisance, and
for an injunction to restrain its continuance.
Private Eights arising out of Public Nuisances.
We have already explained the nature of public nuisance,
when dealing with the criminal law. 1 We propose here to
discuss the right of a private individual to bring an action to
recover compensation for the special damage which he has
sustained from a public nuisance. If at the trial of such an
action the judge thinks that the Attorney-General ought to
have been made a party to the action as representing the
public, he will generally on payment of costs allow the action
to stand over to enable him to be added as a co-plaintiff.
To succeed, in such an action the plaintiff must prove
(i.) that the defendant committed a public nuisance ; and
(ii.) that the plaintiff has in consequence suffered par-
ticular damage over and above that sustained by the rest of
the community.
Private rights of action may arise, for instance, out of a
public nuisance to a highway, 2 if the plaintiff has suffered
some particular damage. 3
The person who dedicates a highway to the use of the public is not
liable, if an injury is caused to any one using the highway by an obstruc-
tion in the highway which existed at the time of dedication (such as
projecting steps or trees), or by an excavation in or near the highway.*
But he cannot subsequently do anything which will render the way less
commodious to the public. If he or any one else subsequently makes and
leaves unfenced an excavation so near a highway that the passers-by may
without negligence stray into it, such an excavation is a public nuisance,
and any one who does fall into it will have a good cause of action. 5
If a house adjoining a highway be allowed to become ruinous and likely
to fall, it is a nuisance to the highway. 6 A low wall with spikes on it
immediately abutting upon a public highway may be such a nuisance. 7
1 See ante, p. 239.
2 A navigable river is a public highway as far inland as the flow of the tide
extends.
* Fritz v. Hobsmi (1880), li Ch. D. 542 ; Campbell v. Paddington Corv. £1911]
1 K. B. 869.
4 Fisher v. Prowse (1862), 2 B. & S. 770.
5 Barnes v. Ward (1850), 9 C. B. 392.
« B. v. Watts (1704), 1 Salk. 357.
» Fenna v. Clare $ Co., [1895] 1 Q. B. 199.
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