英文法律词典 A-5

ABATEMENT² OF A FREEHOLD. The entry of a stranger after the death of the ancestor, and before the heir or devisee takes possession, by which the rightful possession of the heir or devisee is defeated. 3 Bl. 1 Com. 167; Co. Lit. 277, a; Finch's Law, 1 195; Arch. Civ. Pl. 11.

2. By the ancient laws of Normandy, this term was used to signify the act of one who, having an apparent right of possession to an estate, took possession of it immediately after the death of the actual possessor, before the heir entered. Howard, Anciennes Lois des Frangais, tome 1, p. 539.

ABATEMENT OF LEGACIES³, is the reduction of legacies for the purpose of paying the testator's debts.

2. When the estate is short of paying the debts and legacies, and there are general legacies and specific legacies, the rule is that the general legatees must abate¹ proportionably in order to pay the debts; a specific legacy⁴ is not abated⁵ unless the general legacies cannot pay all the debts; in that case what remains⁶ to be paid must be paid by the specific legatees, who must, where there are several, abate their legacies, proportionably. 2 Bl. Com. 513; 2 Vessen. 561 to 564; 1 P. Wms. 680; 2 P. Wms. 283. See 2 Bro. C. C. 19; Bac. Abr. Legacies, H; Rop. on Leg. 253, 284.

ABATEMENT OF NUISANCES is the prostration⁷ or removal of a nuisance. 3 Bl.

2. – 1. Who may abate a nuisance; 2, the manner of abating⁸ it. 1. Who may abate a nuisance. 1. Any person may abate a public nuisance. 2 Salk. 458; 9 Co. 454.

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 omission⁹, 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 mischief¹⁰ has arisen to remedy it, an individual would be justified¹¹ 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 lawful¹². 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 erect¹³ a thing which is a nuisance to another, as by stopping a rivulet¹⁴, 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 justify¹⁵ the trespass¹⁶; 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 Taunt¹⁷. 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 magistrate¹⁸, 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.