Many states have limited instances where a claim of nuisance may be brought. Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. For example: many states and provinces have "right to farm" provisions, which allow any agricultural use of land zoned or historically used for agriculture.

There are two classes of nuisance under the American law: a nuisance in fact, or "nuisance per accidens", and a nuisance per se. The classification determines whether the claim goes to the jury, or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing (or act) in question created a nuisance, by examining its location and surroundings, the manner of its conduct, and other circumstances. A determination that something is a nuisance in fact also requires proof of the act and its consequences.

By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings." Liability for a nuisance per se is absolute, and injury to the public is presumed; if its existence is alleged and established by proof, it is also established as a matter of law. Therefore, a judge would decide a nuisance per se, while a jury would decide a nuisance in fact.

Most nuisance claims allege a nuisance in fact, for the simple reason that not many actions or structures have been deemed to be nuisances per se. In general, if an act, or use of property, is lawful, or authorized by competent authority, it can't be a nuisance per se. Rather, the act in question must either be declared by public statute, or by case law, to be a nuisance per se. There aren't many state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Nor are many activities or structures, in and of themselves, and under any and all circumstances, a nuisance; which is how courts determine whether or not an action or structure is a nuisance per se.

Over the last thousand years, public nuisance has been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure someone in the general public. Donald Gifford argues that civil liability has always been an “incidental aspect of public nuisance”. Traditionally, actionable conduct involved the blocking of a public roadway, the dumping of sewage into a public river or the blasting of a stereo in a public park. To stop this type of conduct, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.

In recent decades, however, governments blurred the lines between public and private nuisance causes of action. William Prosser noted this in 1966 and warned courts and scholars against confusing and merging the substantive laws of the two torts. In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida’s Supreme Court has held that a public nuisance is any thing that causes “annoyance to the community or harm to public health.”

"Note:" the term is also used less formally in the United States to describe the non-meritorious nature of frivolous litigation. A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant pays money to the plaintiff to drop the case primarily to spare the cost of litigation, rather than because the suit would have a significant likelihood of winning.

From Britannica 1911
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USA
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