Definition
A writ and common law action that lay where a nuisance had been committed to a complainant's freehold. The assize of nuisance was a real action — meaning it protected property rights directly — allowing a freeholder to obtain both abatement of the offending condition and money damages in a single proceeding. The complainant was required to allege a specific act or condition causing injury to the freehold (traditionally framed as ad nocumentum liberi tenementi sui — "to the nuisance of his free tenement"). A successful plaintiff recovered judgment commanding removal or correction of the nuisance along with compensation for the harm already suffered.
The action was a creature of English common law procedure and belongs to the historical family of real actions that largely ceased to function after the procedural reforms of the nineteenth century. It should be understood as a predecessor mechanism to the modern private nuisance claim rather than a surviving doctrine.
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Common Confusion
ASSIZE OF NUISANCE vs. QUOD PERMITTAT PROSTERNERE: Researchers encountering historical pleading records may confuse the assize of nuisance with the related writ quod permittat prosternere. The key distinction is the defendant's status: the assize of nuisance lay against the person who actually created the nuisance, while quod permittat prosternere lay against a subsequent holder of the land who had not personally committed the wrong but whose land was burdened by it. Both aimed at abatement, but they tracked different parties and different chains of responsibility.
ASSIZE OF NUISANCE vs. ACTION ON THE CASE FOR NUISANCE: As English procedure evolved, the action on the case for nuisance gradually displaced the assize. Case was more flexible — it did not require the complainant to hold in freehold — and became the dominant vehicle for nuisance claims. By the time Blackstone wrote, the assize of nuisance was already described as seldom used in practice. Modern nuisance law descends from the action on the case, not the assize.
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Why It Matters in Research
This term is essentially historical; it will not appear in modern case law as an operative doctrine. Researchers are most likely to encounter it in three contexts:
First, in pre-nineteenth-century English common law reports and pleading books, where understanding the writ's formal requirements — particularly the need to allege a specific act injurious to a freehold — helps decode the procedural posture of cases being cited in historical scholarship or traced through doctrinal genealogies.
Second, in treatise literature explaining the historical foundations of nuisance law. Blackstone's Commentaries (3 Bl. Com. 221) and Fitzherbert's Natura Brevium (Fitzh. Nat. Brev. 183) are the standard reference points; both are accessible in Law Mind's historical sources and remain the primary substantive authorities. Coke's reports (9 Co. 55) provide further detail on the action's technical requirements.
Third, when tracing how the modern private nuisance claim — with its dual remedies of injunction and damages — inherited its structure from these earlier forms. The assize of nuisance was notable precisely because it combined abatement and damages in a single action, a feature that courts and commentators occasionally invoke when explaining why nuisance carries both equitable and legal remedies today.
A key research trap: because the word "assize" appears in multiple contexts (grand assize, assize of novel disseisin, assize of mort d'ancestor, and so on), proximity searches in historical corpora can return false positives. When searching for this specific action, use "assize of nuisance" as a phrase.
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Historical Dictionary Support
Bouvier's entry is compact but accurate, and it correctly identifies the three essential features of the action: the writ foundation, the freehold requirement, and the dual remedy of abatement plus damages. Bouvier's citations to Fitzherbert, Blackstone, and Coke are the canonical sources and remain reliable starting points.
What Bouvier does not address is the action's practical obsolescence. By the eighteenth century, Blackstone noted that the assize of nuisance was rarely brought, having been supplanted by the more flexible action on the case. Bouvier presents the doctrine in summary form without signaling this displacement. Researchers relying on Bouvier alone may not appreciate that the action had already become a historical artifact before American common law was fully consolidated. No American jurisdiction adopted the assize of nuisance as a live procedural form; what American courts inherited was the case action framework.
Bouvier also omits quod permittat prosternere entirely, which leaves a gap for researchers trying to understand how courts handled nuisances that had passed to new landholders.
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Jurisdictional Note
The assize of nuisance was an English common law writ and was never independently adopted in American practice. American nuisance law developed through the action on the case. Researchers working in English legal history will find the action operative through approximately the late eighteenth century; for American jurisdictions, the term is purely historical and doctrinal.
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Encyclopedia Cross-Reference
property_143: Nuisance — Private Nuisance in the Property Context (The Law Mind Property Law Encyclopedia)
property_144: Nuisance — Public Nuisance and Land Use (The Law Mind Property Law Encyclopedia)
torts_108: Intentional Torts — Property and Economic — Nuisance (Private) (The Law Mind Torts & Personal Injury Encyclopedia)
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