II.

NUISANCE

Introduction

 The word ‘nuisance’ is derived from the French word “nuire” and the Latin word “nocere”,
meaning “to do hurt” or “to annoy”. Nuisance has been defined to be anything done to the
hurt or annoyance of the lands, tenements or hereditaments of another and not amounting
to a trespass. Blackstone describes nuisance as “something that worketh hurt,
inconvenience or damage”. Nuisance is a word that everybody understands and we can say
that nuisance in common parlance means nothing more than inconvenience to people or to
another. The law recognizes that minor inconveniences should be endured as they are
inevitable; example of you build your house along a high way, cars will always pass with
their horns hooting.
 In law, nuisance has a more restrictive meaning that is has in an ordinary parlance. It is not
all inconveniences that will succeed in an action for nuisance. Minor inconveniences which
are usually as a result of normal human interaction in the society are not actionable in law.
The law always tries to strike a balance between the conflicting interest of the plaintiff and
the defendant in the society. So we can define the tort of nuisance as an act which gives rise
to unlawful, unwarranted or unreasonable annoyance or discomfort to the plaintiff and
which results in damage to the property of the plaintiff or interferes with his use and
enjoyment of his land.
 Injunction is the major remedy in the law of nuisance. This is an equitable remedy which
may be interim, interlocutory, or final. Other remedies include general and special as well
as exemplary damages. Resort to self-help occurs for abetment of nuisance, though the law
frowns at it. The law of nuisance protects individuals from environmental pollution, such
as emission of fumes, oduor, noise pollution vibrations, oil spillages, etc. It also protects
individuals from unwarranted obstructions such as obstruction of the roads/highways,
waterways, access roads, right to light, right to air and even right to sea or obstruction of
one’s view.

14
A. PUBLIC OR COMMON NUISANCE

 Definition: - Public nuisance is “an act or omission which causes any common injury,
danger or annoyance to the public or to the people in general who dwell or occupy property
in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have the occasion to use any public right”: Section 268, Indian Penal
Code. Thus, keeping a common gaming-house, or a disorderly inn, obstructing a highway,
or making it dangerous for traffic, would come within the category of public nuisance.
 Public nuisance consists not only of those acts which interfere with definite public rights
(such as the right to use a public thoroughfare) but also of nuisance which endangers the
health, safety or comfort of the public generally, such as noise or the escape of noxious
vapors, gases, fumes or any deleterious thing affecting the health of the neighbourhood.
 The Gujarat High Court examined the scope of the tort of nuisance in a suit where the
plaintiffs alleged that some scenes in the Hindi film ‘Jai Santoshi Ma’ would hurt the
religious feelings of devout Hindus and cause annoyance and offence to them. After
observing that ‘nuisance’ is a word which is not capable of an exact definition, the Court
held that to make nuisance an actionable tort, it is essential that the following two things
must co-exist, namely:
(a) Wrongful act; and
(b) Damage or loss or inconvenience or annoyance caused by such act to another.

Suit by a private individual for public nuisance

Ordinarily, a private individual cannot sue for a public nuisance. To enable a private individual
to bring an action for damages in respect of a public nuisance, he must satisfy the following
three conditions:

1. Special damage

Firstly, the plaintiff must prove that he has suffered a particular injury to himself, beyond that
suffered by the rest of the public. If the alleged nuisance is, for instance, the obstruction of a
highway, it is not enough for him to show that he suffers the same inconvenience in the use of
the highway as other people do. He must show that he has suffered some damage more than
what the general body of public has to suffer.

15
 2. Injury must be direct

Secondly, the plaintiff must show that such injury is direct, and not merely consequential, as
where one way is obstructed, but another is left open. In such a case, the private and particular
injury is not sufficiently direct to give rise to a cause of action.

3. Injury must be substantial

Lastly, such an injury should be of substantial nature, that is, not fleeting or evanescent.
Therefore, in order to entitle a person to maintain an action for damages caused by that which
is a public nuisance, the damage must be particular, direct and substantial. The object of this
rule is to avoid multiplicity of litigation. Thus, the constant ringing of the bells near a dwelling
place is a public nuisance, and if it interferes with the comfort of a tenant, he will be said to
suffer special damage, and an action for public nuisance can lie at his instance.

Remedies for public nuisance

The appropriate remedies for a public nuisance are two:

(1) Civil

The Attorney-General in England can sue in respect of a public nuisance. In India, under
Section 91 and 93 of the Civil Procedure Code, the Advocate-General in a Presidency town,
and the Collectors outside such towns have the same powers as the Attorney-General in
England has with respect to a public nuisance.

(2) Criminal

Ch. XIV of the Indian Penal Code and Ss. 133 to 143 of the Criminal Procedure Code prescribe
the appropriate remedies for a public nuisance.

16
B. PRIVATE NUISANCE

 Definition: - A private nuisance is some unauthorized use of a man’s own property, causing
damage to the property of another, or some unauthorized interference with the property or
proprietary rights of another, causing damage, but not amounting to trespass. Private
nuisance includes obstruction to light and air, wrongful escape of foul, gas, or noise, water,
filth, germs, etc. The essentials of private nuisance thus are (1) an unlawful act; and (2)
damage, actual or presumed. Further, the damage must be substantial and not merely
sentimental, speculative, trifling, fleeting or evanescent.

Kinds of private nuisance

(i) Damage to property

In the case of damage to property, any sensible injury would be sufficient to support an action.
In considering whether an act is a nuisance, not only the thing done, but also the surrounding
circumstances, must be taken into account.

(ii) Physical discomfort.

In the case of physical discomfort, the act complained of must be (i) in excess of the natural
and ordinary course of enjoyment of the property, and (ii) materially interfering with the
ordinary comfort of human existence. The damage must be substantial, and everything must be
looked at from a reasonable point of view. The law does not regard trifling and small
inconveniences, but takes account of sensible inconvenience and injuries which considerably
diminish the comfort, enjoyment or value of the property which is affected.

Elements which constitute a private nuisance

 The interference must be unreasonable or unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be by an act which no reasonable man would
do.
 Such interference has to be with the use or enjoyment of land, or of some rights over the
property, or it should be in connection with the property or physical discomfort.
 There should be seeable damage to the property or with the enjoyment of the property in
order to constitute a private nuisance.

17
C. REMEDIES

Three remedies available to a person for nuisance:

1. Abatement 2. Damages 3. Injunction

Abatement means the removal of a nuisance by the party injured. The removal must be
peaceable and without danger of lib or limb; and if it is necessary to enter another’s land or
property, prior notice should be given. Nuisance by a positive act of commission may be abated
without notice, but not nuisance due to omission. A private individual cannot abate a public
nuisance, except under the three circumstances discussed earlier.

2. Damages

The second remedy for nuisance is damages. It has been held that what is important in cases of
nuisance is not whether the defendant is using his own property reasonably, but whether injury
is caused to his neighbour. The measure of damage will be the diminution of value of the
plaintiff’s property as a direct result of the defendant’s nuisance. It must be remembered that
every day that the nuisance continues, a fresh cause of action arises, for which further damages
may be recovered.

3. Injunction

In order to obtain an injunction, it must be shown that the injury complained of is present or
such as, by reason of its gravity or permanent character or both, cannot be adequately
compensated on damages. The Allahabad High Court has held if in a noisy locality, substantial
addition to the noise is introduced at the defendant’s premises by some machines in a flour-
mill, which materially affects the physical comfort of the plaintiff, a permanent injunction
against the defendant can be granted by the Court.

18
Public and private nuisance distinguished

There are five points of distinction between public and private nuisance:

1. Nature of the right violated

A public or common nuisance affects the public at large or some considerable portion thereof,
whilst a private nuisance affects only person one or a determinate body of persons. In
other words, while a public nuisance is an offence against public right, safety of convenience,
a private nuisance is person to the comfortable occupation of his property. a violation of a
private right of a person to the comfortable occupation of his property.

2. Who can sue

Public nuisance does not create a civil cause of action for any person. An action cannot be
maintained by a private individual in his own name in respect of a public nuisance, except
under the three circumstances mentioned earlier. Private nuisance, on the other hand, is
actionable at the suit of any person in possession of land who is injured by reason thereof.

3. Acquisition of right to continue nuisance

While no length of time can legalise a public nuisance, a right to create or continue a private
nuisance may be acquired by prescription.

4. Abatement

Whilst a private nuisance may be abated by the person injuriously affected thereby, a public
nuisance cannot be so abated by him.

5. Remedies available

An action for damages lies in respect of a private nuisance, but not in respect of a public
nuisance, unless the plaintiff has sustained for special damages. In case of a public nuisance,
the action generally is for declaration and injunction.

19
D. LAW AS TO NUISANCE GENERALLY

The following are general provisions of the law which are common to both kinds of nuisance,
public and private.

Who can sue for nuisance

For nuisance of a temporary character, the actual occupiers of the property can file a suit. If the
affected property is in the occupation of tenants, the landlord or reversionary has no right of
action, unless the nuisance is of a permanent character and necessarily inflicts asting damage
to the property. So long as the tenants stay and endure the nuisance, they are the only persons
who can complain A person who has no interest in the property or no right of occupation cannot
maintain an action. In the case of a public nuisance, the Attorney-General in England and the
Advocate-General or Collector in India can maintain a suit

Who is liable for nuisance

The following persons are liable for a nuisance:

1. He who actually creates a nuisance is liable for it. Further, the occupier of premises is under
a duty of care to see that no nuisance is created or maintained on his property. it is only a person
who is in actual occupation of the premises who can be sued for a nuisance emanating

2. In general, it is only a person who is in actual occupation of the premises who can be sued
for a nuisance emanating from the premises.

3. Prima facie, it is the tenant who alone will be liable. But in the following cases, the landlord
will be liable concurrently with the tenant:

- when the landlord has, prior to the lease, created a nuisance by a positive act of misfeasance;

- when he has expressly or impliedly authorised the tenant to continue the nuisance;

- when the nuisance is due to a breach by the landlord of is covenants to repair the premises.

20
E. DEFENCES

The following are three valid defences to an action for nuisance:

1. Grant

It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.

2. Prescription

A special defence available in the case of nuisance is prescription. The right to continue a
private nuisance may be acquired as an easement of prescription, if it has been peaceably and
openly enjoyed as an easement and as of right, without interruption for 20 years.

3. Statutory authority

When a statute has authorised the doing of a particular act or the user of land in a particular
way, all remedies, whether by way of Indictment or action, are taken away provided that every
reasonable precaution consistent with the exercise of the statutory powers has been taken.

In a suit for nuisance, the following cannot however, be pleaded as a defence:

(a) It is no defence to show that the plaintiff himself came to the nuisance. Thus, if a man
knowingly purchases an estate in close proximity to a smelting factory, his remedy for nuisance
created by fumes issuing therefrom is not affected.

(b) In the case of a continuing nuisance, it is no defence to show that all possible care and skill
were used to prevent the operation complained of from amounting to a nuisance. In other
words, in an action for nuisance, it is no answer to say that the defendant has done everything
in his power to prevent its existence.

(c) It is no defence that the defendant is merely making a reasonable use of his own property.
No use of property is reasonable which causes substantial discomfort to other persons.

(d) It is also no defence that the defendant's operations do not alone amount to a nuisance, as
for instance, that other factories also contribute to the noise or smoke complained of.

21
CASE LAWS

1. SOLTAU v. DE HELD (1851)

In this case, nuisance was regarding noise. The plaintiff resided in a house next to a Roman
Catholic chapel of which the defendant was the priest, who rand the chapel bell at all hours of
day and night. It was held that it was a public nuisance, and inasmuch as it proved particularly
obnoxious to the plaintiff and satisfied the requirements of a suit by a private individual for
public nuisance. Further, so far as the plaintiff was concerned, it also became a private nuisance
and the plaintiff was held entitled to an injunction.

2. HALSEY V. ESSO PETROLEUM CO. LTD

The defendant's depot dealt with fuel oil in its light from the chimneys projected from the boiler
house, acid smuts containing sulphate were emitted and were visible falling outside the
plaintiff's house. There was proof that the smuts had damaged clothes hung out to dry in the
garden of the plaintiff's house and also paint work of the plaintiff's car which he kept on the
highway outside the door of his house. The depot emanated a pungent and nauseating smell of
oil which went beyond a background smell and was more than would affect a sensitive person
but the plaintiff had not suffered any injury in health from the smell. During the night there was
noise from the boilers which at its peak caused window and doors in the plaintiff's house to
vibrate and prevented the plaintiff's sleeping. An action was brought by the plaintiff for
nuisance by acid smuts, smell and noise. The defendants were held liable to the plaintiff in
respect of emission of acid smuts, noise or smell.

22