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3 Nat. Resources Law. 475 (1970)
Air Pollution as a Private Nuisance

handle is hein.journals/narl3 and id is 487 raw text is: BENEDICT A. SCHUCK, III* Air Pollution as a Private Nuisance NUISANCE LAW IN GENERAL Everyone is aware that there is considerable clamor from the public and by our legislatures these days for additional and more comprehensive laws to control and prevent air pollution. But less attention has been given to the activities of private citizens in their efforts to obtain civil redress for damages allegedly occasioned by air pollution. The object of this article is to analyze the nature and requirements of such a suit, and to explore the numerous problems and obstacles which the plaintiff in any such litigation must be prepared to meet.' Nuisance law has traditionally been divided into areas, characterized as public nuisance and private nuisance. Although a public nui- sance and a private nuisance have some similarities, they are rooted in two distinctly different areas of the law, each concerned with the protection of distinctly different interests. One writer in this field goes so far as to observe: Public and private nuisances are not in reality two species of the same genus at all. There is no conception which includes the crime of keeping a gaming-house and the tort of allowing one's trees to overhang the land of a neighbor.2 Private Nuisance A private nuisance is properly characterized as a tort, and gives rise to a private cause of action in favor of any person who sustains damage from the maintenance of the nuisance. It has been recognized for more than four centuries that a wrongful interference with the use or * Mr. Schuck is an associate of the Los Angeles law firm of Burris & Lagerlof. He holds a B.A. degree from Loyola University of Los Angeles and a J.D. degree from University of Southern California. I This article does not attempt to catalog or evaluate legislation in the air pollution field. A digest of most federal, state and local air pollution laws is contained in Student Symposium: Air Pollution, 1968 WASH. U.L.Q. 205 et seq. (1968). See also U.S. DEPART- MENT OF HEALTH EDUCATION, AND WELFARE, A DIGEST OF STATE AIR POLLUTION LAWS ii (Public Health Service Pub. No. 711, 1966 ed.) 2J. SALMOND, TORTS 229 (9th ed. 1936). See also; Comment, The Role of Private Nuisance Law in the Control ofAir Pollution, 10 ARIz. L. REV. 107 (1968). 475

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