Definition
An ancient English common-law writ and proceeding by which a freeholder whose land was injured by a nuisance could seek both abatement of the nuisance and recovery of damages. The writ directed the sheriff to summon a jury (the "assise"), view the premises, and present the matter at the next court session for determination. The remedy was confined to nuisances affecting a complainant's freehold — that is, an interference with land held in fee or for life — and did not extend to lesser interests or purely personal injuries.
The assise of nuisance was a possessory remedy, a member of the family of real actions that characterized medieval English land law. Its purpose was both restorative (removing the nuisance) and compensatory (awarding damages for harm suffered), making it somewhat exceptional among the early real actions, which typically focused on restoring possession rather than compensating loss.
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Common Confusion
ASSISE OF NUISANCE vs. QUOD PERMITTAT PROSTERNERE: Researchers encounter both writs in historical sources on nuisance. The assise of nuisance ran against the party who personally committed the nuisance. The writ of quod permittat prosternere was available against a subsequent owner who had merely inherited or acquired land on which the nuisance existed — that is, where the original wrongdoer was no longer in possession. The two writs were complementary rather than interchangeable, and the distinction matters when tracing early nuisance doctrine through plea rolls and treatises.
ASSISE OF NUISANCE vs. ACTION ON THE CASE FOR NUISANCE: By the later medieval and early modern period, the action on the case for nuisance overtook the assise as the primary vehicle for nuisance claims. The case action was more flexible — it was available for nuisances to non-freehold interests, reached a wider range of harms, and was not constrained by the formal requirements of the assise. Encountering "an action for nuisance" in seventeenth-century or later sources almost certainly means case, not the assise.
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Why It Matters in Research
The assise of nuisance is fundamentally a historical term. No modern jurisdiction employs it, and researchers will encounter it almost exclusively in medieval and early modern English legal sources — plea rolls, Bracton, Fitzherbert's Natura Brevium, and related treatises on the forms of action.
Several navigational points are essential:
First, the term "assise" is a word of multiple meanings in historical sources. Black's notes that it could refer to a court session, a jury itself, an ordinance, or a specific writ. When reading historical material, context is required to determine which sense is operative. The phrase "assise of nuisance" (or its Latin equivalent, assisa de nocumento) is a specific writ form, distinct from the general assise courts or the assise of novel disseisin.
Second, the jurisdictional boundary of the writ — limited to freehold injuries — is doctrinally significant. This limitation helps explain why the action on the case expanded so rapidly in the fifteenth and sixteenth centuries: it filled the gaps the assise could not reach, eventually absorbing nuisance claims entirely. Understanding the assise's boundaries illuminates the development of modern nuisance law.
Third, researchers tracing the history of private nuisance doctrine through English materials should treat the assise of nuisance as the doctrinal starting point but expect the live development of nuisance law to occur in the case actions and, ultimately, in equity. The assise itself had largely fallen into disuse by the time of the forms-of-action reforms, and Blackstone's Commentaries and later common law treatises treat it as a historical relic rather than a living remedy.
Fourth, American legal history researchers should note that the assise of nuisance, like most of the real actions, was not transplanted meaningfully to the American colonies. American nuisance law developed through the action on the case and, later, through consolidated tort and property frameworks. References to the assise in American sources will almost invariably be historical or comparative.
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Historical Dictionary Support
Black's Law Dictionary defines the assise of nuisance as "a writ of assise which lay where a nuisance had been committed to the complainant's freehold; either for abatement of the nuisance or for damages." This is accurate and concise but gives no procedural detail.
Burrill's Law Dictionary is more instructive, providing the Latin form (assisa de nocumento) and the procedural mechanics: the writ recited the specific nuisance complained of "to the nuisance of his freehold" (ad nocumentum liberi tenementi sui), then directed the sheriff to summon a jury, view the premises, and return the matter to court. Burrill's entry conveys that the writ was as much a procedural mechanism — the summoning and empaneling of an assise-jury — as a substantive remedy.
Both sources agree on the core function: the writ addressed nuisances to freehold interests and combined abatement with damages. Neither source discusses the relationship to quod permittat prosternere or the later displacement of the assise by the action on the case, which are essential contexts for research use. Bracton's De Legibus et Consuetudinibus Angliae and Fitzherbert's Natura Brevium remain the primary sources for procedural depth on this writ.
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Jurisdictional Note
The assise of nuisance was an English common-law writ with no direct equivalent in other legal systems. It was not formally received in American law. Modern nuisance doctrine in both England and the United States descends from the action on the case rather than from the assise.
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Encyclopedia Cross-Reference
Property Law Encyclopedia § 143: Nuisance — Private Nuisance in the Property Context
Property Law Encyclopedia § 144: Nuisance — Public Nuisance and Land Use
Torts & Personal Injury Encyclopedia § 108: Intentional Torts — Nuisance (Private)
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