UNIT – III
Nuisance Under Tort Law
1) Meaning
2) Definition
3) Distinction between Nuisance & Trespass
4) Essential Elements
Wrongful Act
Damage or loss or annoyance caused to another individual
5) Kinds of Nuisance
Public Nuisance
Private Nuisance
6) Defenses
Prescriptive Right
Statutory Authority
1) Meaning of Nuisance
A person in possession of a property is entitled to its undisturbed enjoyment
as per law. However, if someone else’s improper use or enjoyment in his
property ends up resulting into an unlawful interference with his enjoyment
or use of that property or of some of the rights over it, or in connection with
it, we can say that the tort of nuisance has occurred.
o The word “ Nuisance” is derived from the French word “ Nuire” which
means “ to do hurt, or to annoy”.
o The Latin term word for nuisance is “ nocere” which means “ to cause
harm” .
o Nuisance is an injury to the right of a person’s possession of his property to
undisturbed enjoyment of it and results from an improper usage by another
individual.
o Example: Noise, heat, smoke, smell, disease producing germs etc.
2) Definition
According to Stephen: Nuisance is “anything done to the hurt or annoyance
of the tenements of another, or of the lands, one which doesn’t amount
to trespass”.
According to Salmond: “Nuisance consists in causing or allowing to cause
without lawful justification, the escape of any deleterious thing from one’s
land or from anywhere into land in possession of the plaintiff, such as
water, smoke, gas, heat, electricity, etc”.
3) Distinction between Nuisance & Trespass
Trespass Nuisance
Trespass is a direct Physical It is an injury to some right accessory to
interference with the plaintiff’s possession but no possession itself.
possession of land through some
material or tangible object.
It is actionable per se It is actionable only on proof of actual
damage.
If the Interference is direct, the If it is consequential , it amounts to
wrong is trespass nuisance.
Example: Planting a tree on Example: When a person plants a tree
another’s land is a trespass over his own land and the roots or
branches project into or over the land of
another person, that is nuisance.
4) Essential Elements
There are two essential elements that are to be proved under the Nuisance:
1) Wrongful act: Any act which is done with the intention to cause the
infringement of the legal rights of another is considered to be a wrongful
act.
Example: Mr. Arun starts a cement factory on his own land. The gigantic
noises and the dust from the factory disturbs his neighbor Mr. B along
with polluting his house. Here Mr. Arun commits nuisance by disturbing
Mr. B.
2) Damage or loss or annoyance caused to another individual: Damage or
loss or annoyance must be such which the law should consider as a
substantial material for the claim.
Example: Mr. Arun obstructs the Public road because of the chaos created
by his cattle.
5) Kinds of Nuisance
A) Public Nuisance: Public nuisance affects the society and the people living in it
at large, or some considerable portion of the society and it affects the rights
which the members of the society might enjoy over the property. The acts
which seriously affects or interferes with the health, safety or comfort of the
general public is a public nuisance.
Instances where an individual may have a private right of action in respect to
a public nuisance:
• He must show the existence of any personal injury which is of a higher degree
than the rest of the public.
• Such an injury has to be direct and not just a consequential injury.
• The injury must be shown to have a huge effect.
• Section 268 of the Indian penal Code defines nuisance as an act which causes
any common injury, danger or annoyance, to the people in general who
dwell or occupy the property, in the vicinity, or which must necessarily cause
injury, obstruction, danger, or annoyance to the people who may have
occasion to use any public right.
• Thus a suit in respect of a public nuisance may be instituted by any one of
the following:
By the Advocate – general Acting Ex officio or
By him at the instance of two or more persons or
By two or more persons with the leave of the Court.
In the following circumstances , an individual may have a private right of action
in respect of a public nuisance.
(1) He must show a particular injury to himself beyond that which is suffered
by the rest of the public.
(2) Such injury must be direct, not a mere consequential injury; as where one
is obstructed , but another is left open.
(3) The injury must be shown to be of a substantial character, not fleeting, or
quickly fading.
In a public nuisance, the defendant’s actions effect a large or indefinite
number of people, such as the community as a whole. When plaintiffs are
affected by a private or public nuisance, they have the right to seek relief for
damages from the defendant. Sometimes monetary damages are awarded in
nuisance cases, but more often , it is equitable damages.
B ) Private Nuisance: Private Nuisance is that kind of nuisance in which a person’s
use or enjoyment of his property is ruined by another. It may also injuriously
affect the owner of the property by physically injuring his property or by
affecting the enjoyment of the property.
Elements which constitute a private nuisance
Private nuisance is an unlawful interference and / or annoyance which cause
damages to an occupier or owner of land in respect of his enjoyment of the
land. Thus, the elements of private nuisance are:
(a) 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.
(b) 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.
(c) There should be see able damage to the property or with the enjoyment of the
property in order to constitute a private nuisance.
(a) Unreasonable Interference: Interference may cause damage to the plaintiff's
property or may cause personal discomfort to the plaintiff in the enjoyment of
property. Every interference is not a nuisance. To constitute nuisance, the
interference should be unreasonable . Every person must put up with some
noise, some vibrations, some smell, etc, so that members of the society can
enjoy their own rights.
Case law : Radhey Shyam v/s Gur Prasad
(b) Interference with the use or enjoyment of land: Interference may cause either
(1) Injury to the Property Itself: An unauthorized interference with the use of the
property of another person through some object, tangible, or intangible, which
causes damage to the property, is actionable as nuisance.
Case Law : St. Helen’s Smelting Co v/s Tipping
(2) Injury to comfort or health of occupants of Certain Property: Substantial
interference with the comfort and convenience in using the premises is
actionable as a nuisance.
(c) Damage : In the case of public nuisance , the plaintiff can bring an action in tort
only when he proves a special damage to him. Although damage is one of the
essentials , the law will often presume it.
Case Law : Fay v/s Prentice
6) Defences
Prescriptive Right: A prescription is a title acquired by use and time and
which is allowed by the law, a person claims any property because his
ancestors have had the possession of the property by law.
Statutory Authority: An act done under the authority of a statute is a
complete defense. If nuisance is necessarily incident to what has been
authorized by a statue , there is no liability for that under the law of torts.
• Ineffectual Defences
• Nuisance due to acts of others
• Public Good
• Reasonable care
• Plaintiff coming to Nuisance
