Tuesday, May 28, 2024





Explain the tort of nuisance in detail.

Nuisance is a type of criminal offense that involves the unlawful interference with the use or enjoyment of a person’s property, or the exercise of a right over or in relation to it. Examples of such interference include acts that interfere with comfort, health, or safety. These acts may include, but are not limited to, electronic noise, vibration, heat, smoke and odours, water, gas and electricity, excavation, or the production of disease-causing germs.

Nuisance should be distinguished from trespass. Trespass is:
(i) A direct physical interference,
(ii) With the Plaintiff’s possession of land,
(iii) Through some materials or tangible object.

Both The difference between nuisance and trespass is that in both cases, the plaintiff must prove his possession of the land. In fact, the two may even co-occur, with some types of nuisances also constituting continuing trespass. The main differences between the two cases are that if the interference is direct and consequential, it is trespass, and if it is indirect, it is nuisance. For example, if you plant a tree on someone else’s land, that is trespass. If you plant a tree over your own land and its roots or branches run into or over another person’s property, that’s nuisance.

Similarly, if you throw stones upon your neighbour’s property and they don’t respond, that is a violation of trespass. Similarly, if you allow stones to fall from a ruined chimney on your property, that is the violation of trespass. What is nuisance? Nuisance is interference with someone’s right to use or enjoy land in the first place. Such interference may be there without there being any interference.

For instance, a person could create a nuisance on their own land by creating an unpleasant smell or noise.

In addition, in the case of trespass, the interference is always in the form of physical objects. However, nuisance can also be caused by the use of intangible objects such as vibrations, gases, noise, odours, electricity, or smoke. While a trespass action is actionable on its own, in a nuisance action, special damage must be proven.

Kinds of Nuisance is of two kinds:
(i) Public or Common Nuisance.
(ii) Private Nuisance, or Tort of Nuisance.

According to Stephen “nuisance has been defined to be anything done hurt or annoyance of the lands, tenements or hereditaments of another” amounting other to trespass.”

According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful justification but not so as to amount trespass, if escape of any deleterious thing from his land or from elsewhere, into land in the possession of the plaintiff for example, water, smoke, smell, fumes, gas, noise, heat, vibration electricity, disease, germs, animals, negligence.”

According to Dr. Winfield nuisance “is an unlawful interference with persons’ use or employment of land, or of some right over or in connection with it.”

Kinds of nuisance
Public Nuisance

In addition, in a trespass case, the interference is always in the form of physical objects. In a nuisance case, the nuisance can also be caused by the use of intangible objects such as vibrations, gases, noise, odours, electrical charges or smoke. While a trespass action is actionable on its own, in a nuisance action, special damage must be proven.

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.

In Dr. Ram Raj Singh v. Babulal, the defendant created a brick grinding machine adjoining the premises of the plaintiff, who was a medical practitioner. The dust entered the consulting chamber of the plaintiff and caused physical The brick grinding machine generated dust, which polluted the atmosphere. inconvenience to him and patients, and their red coating on clothes, caused by the dust, could be apparently visible. It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running his brick grinding machine there.

In Rose v. Milles, the defendant Wrongfully moored his barge across a public navigable creek. This blocked the way for plaintiff’s barges and the plaintiff had to incur considerable expenditure in unloading the cargo and transporting the same by land. It was held that there was special damage caused to the plaintiff to support his claim.

In Campbell v. Paddington Corporation, the plaintiff was the owner of a building in London. The funeral procession of King Edward VII was to pass a highway just in front of the plaintiff’s building. An uninterrupted view of the procession could be had from the windows of the plaintiff’s building. The plaintiff accepted certain payments from certain persons and permitted them to Occupy seats in the first and second floor of her building.

Before the abovesaid procession, the defendant corporation constructed a stand on the highway in front of the plaintiff building to enable the members of the Corporation and its guests to have a view of the procession. This structure now obstructed the view from the plaintiff’s building. Because of the obstruction, the plaintiff was deprived of the profitable contract of letting seats in her building.

She filed a suit against the Corporation contending that the structure on the highway, which was a public nuisance, had caused special loss to her, it was held that she was entitled to claim compensation. If the plaintiff cannot prove that he has suffered any special damage, i.e., more damage than suffered by the other members of the public, he cannot claim any compensation for the same.

This may be explained by referring to Winterbottom v. Lord Derby, in this case, the defendant’s agent blocked a public footway. The plaintiff brought an action alleging that sometimes he had to go by another route and sometimes he had to incur some expenses in removing the obstruction. Held, he could not recover as he had not suffered more damage than could have been suffered by other members of the public. Kelley, J. observed, “If we were to hold that everybody who merely walked up the obstruction, or who chose to incur expenses in removing it might bring his action for being obstructed, there would really be no limit to the number of actions which might be brought.

Private Nuisance
Private nuisance is a type of nuisance where another person destroys the use or enjoyment of another person’s property. Private nuisance can also injure the property owner by causing physical harm to their property or by destroying the enjoyment of their property.

Unlike public nuisance, private nuisance involves the destruction of an individual’s use or enjoyment of property, as distinguished from the use of property by the public or society as a whole. A civil action for damages, an injunction, or both is the remedy for private nuisance.

Elements which constitute a private nuisance 1. There must be an unlawful or unreasonable interference. The existence of an act of nuisance can only be established if an individual unlawfully or without reasonable cause obstructs the peaceful enjoyment of the plaintiffs in the plaintiff’s property. Therefore, in cases where an individual under legal authority causes the offence of nuisance by carrying out the authorized work, the individual would not be liable.

2. Such unlawful interference must be with the enjoyment or use of the land or some right or in connection with the land. Every person has a right so that he can peacefully enjoy his property. This law is in place to protect such rights only.

In the case of Datta Mal Chiranji Lal v. Lodh Prasad where the plaintiff was not able to enjoy peacefully in his house due to the excessive noise produced by the electric mill installed by the defendants, it was held that the plaintiff has a right to the action.

3. There must be some damage suffered by the plaintiff. The damage here can be to the property or the plaintiff in the form of physical discomfort. In the cases where damage is done to the property, any sensible injury would be enough to support an action.

In the case of St. Helen Smelting Co. v. Tipping where the fumes from the defendant’s manufacturing industry damage the trees and shrubs present in plaintiff’s land, it was held to be sufficient amount of damage to the property.

In Dilware v. Westminister City Council, the roots of the respondent’s tree caused a crack to the neighbor’s building. The neighbor in the present case was allowed to claim compensation for the damage caused to his property.

Defences available for Nuisance 1. Prescription – Prescription is a form of title that is acquired through use and time and is permitted by the law. A person can claim any property because their ancestors owned it by law. Prescription is a special form of defence because if the nuisance has been going on peacefully and openly for a period of 20 years without any interruption, then the party is entitled to the defence of prescription. At the end of that 20-year period, the nuisance is legalised as though it had been approved in its commencement by the grant from the land owner. The meaning of prescription is as follows:

There are three essentials to establish a person’s right by prescription, these are 1. Use or enjoyment of the property: The use or enjoyment of the property must be acquired by the individual by law and the use or enjoyment must be done openly and peacefully.

2. Identity of the thing/property enjoyed: The individual should be aware of the identity of thing or property which he or she is peacefully or public ally enjoying.

3. It should be unfavourable to the rights of another individual: The use or enjoyment of the thing or property should be of such a nature that it should be affecting the rights of another individual thus causing a nuisance and even after knowing of such a nuisance being caused there must’ve been no action taken against the person causing it for at least twenty years.

2. Statutory authority – When a statute authorises the doing of a particular act or the use of land in a way, all the remedies whether by action or indictment or charge, are taken away. Provided that every necessary reasonable precaution has been taken. The statutory authority may be either absolute or conditional. When there is an absolute authority, the statue allows the act and it is not necessary that the act must cause a nuisance or any other form of injury. Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any other form of injury.

Remedies for Nuisance 1. Injunction – An injunction is a court order that prohibits a person or entity from doing or continuing to do or act in a manner that is likely to endanger or interfere with the legitimate rights of another person. An injunction may be a temporary order that is issued for a period of time and may be revoked or confirmed. If confirmed, an order takes the form of an order.

2. Damages – Damages may be offered in the form of compensation to the injured party, which may be in the form of a lump sum. The number of damages awarded to the injured party is determined by the statue. The purpose of damages is not only to compensate the injured party, but also to make the defendant aware of his errors and prevent him from repeating them.

3. Abatement – Abatement is the process of removing a nuisance by the person who has suffered it, without the need for legal action. This type of remedy is not preferred by the law. However, it is available in certain circumstances. It must be done within a reasonable period of time, and usually requires notification of the defendant and their failure to act. Reasonable for can be used to employ abatement. If the defendant acts beyond reasonable measures, the plaintiff will be held liable.

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