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Nuisance Under Law Of Torts

This study deals with nuisance as it is most frequently pled common law action in environmental litigation. The law of nuisance protects the right of the property owner or the right of the person to use and enjoy the property and his liberty. Nuisance is an act that arises from unlawful and unreasonable use of a persons own property that is working an obstruction or injury to the right of other person who is common public and producing such annoyance to the public and causing inconvenience and discomfort resulting in damage or injury to the rights or the property of a person.

Pollution which causes environmental damage or injury to land (as opposed to the public at large) may also give rise to civil claims for private nuisance or trespass at common law. If pollution is caused by a person's negligence, it may give rise to a civil claim under the common law of negligence.

Introduction
The word Nuisance is derived from the French word 'Nuire' which means to hurt or to annoy or to cause inconvenience or damage. One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone else's improper use in his property results into an unlawful interference with his use or enjoyment of that property or of some right over, or in connection with it, we may say that tort of nuisance occurred.

In other words, Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it. Nuisance is an injury to the right of a person in possession of a property to undisturbed enjoyment of it and result from an improper use by another person in his property.

For Examples- Acts interfering in comfort, health or safety of the person in the way of Noise, Vibration, Heat, Smoke, Smell, Fumes Water Gas, Electricity Excavation, Disease producing germs, Sewer Obstructions etc..


Definition Of Nuisance

The Nuisance is defined in various words by many authors:
  • Stephen:
    To be anything done to the hurt or annoyance of the lands, tenement or hereditaments of another, and not amounting to a trespass.
  • Blackstone:
    Nuisance asxsome thing that worked hurt, inconvenience or damage.
  • Winfield:
    Nuisance is incapable of exact definition but for the purpose of law of tort, it may be described as unlawful interference with a person's use or enjoyment of land or of some right over, or in connection with it.
  • Salmond:
    The wrong of nuisance consists in causing or allowing without lawful justification but so as to common to trespass the escape of any dexterous thing from his land or from elsewhere into land in possession of the plaintiff e.g. Water, smoke, smell, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.
  • Clark and Lindsell:
    Nuisance is an act or omission which is an interference with disturbance of or annoyance to a person in the exercise or enjoyment of:
    1. Right belonging to him as a member of public when it is a public nuisance, or
    2. His ownership or occupation of land, or some easement, quasi easement, or other right used or enjoyed in connection with land, when it is private nuisance.

Essentials Of Nuisance

  • Wrongful Act (i.e. unlawful interference)
    For an act to constitute nuisance it must be prima facie wrongful or it should be an unlawful interference with a person or his property.
  • Actual Damage or Loss
    Inconvenience or annoyance caused to another which the law considers as substantial or material as opposed to sensitivity or delicacy.
    It was held that hurt to religious feelings was not an actionable wrong. Moreover the plaintiff's were free not to see the movie again.

In Halsey v. Esso Petroleum Co. Ltd.[1] -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.

Literature Review
This study concludes that the general rule is that a person may use his land or personal property in any manner he sees fit. However, this rule is subject to limitation. The owner must use his property in a reasonable manner. A nuisance arises whenever a person uses his property to cause material injury or annoyance to a reasonable neighbor. Odors, dust, smoke, other airborne pollutants, water pollutants and hazardous substances have all been held to be nuisance.

Under both private and public nuisance law, the plaintiff must prove that the defendant's activity unreasonably interfered with the use or enjoyment of a protected interest and caused the plaintiff substantial harm. The tier of fact determines whether an activity is unreasonable by balancing the social utility of the activities against the harm they create.Private nuisance actions to gain compensation and force polluters to discontinue interference with their physical private property as well as with their comfort and enjoyment of their property. Public nuisance law protects from interference a "right common to the general public."

Plaintiffs may bring a public nuisance action if there are damages, International Journal of Pure and Applied Mathematics Special Issue 2318interference, or inconvenience to the public. A state may assert a public nuisance action as an exercise of its police powers the typical situation. A private citizen may bring a public nuisance action only if he or she can show that he or she has suffered from a harm that can be distinguished from that suffered by the members of the general public applied Mathematics Special Issue.

Research Objectives
  1. To understand the essentials of nuisance.
  2. To understand the difference between public and private nuisance
Research Questions
  1. What are the defences under nuisance?
  2. What are the different judgements given under nuisance?
Methodology
This research paper talks about the tort of Vicarious Liability which means master and servant relationship where, the master is liable for all the wrongful act committed by his servant during the course of employment.

It is a very informative paper. Here the data is collected through secondary sources like books, articles and journals and also referred case laws for reference and easy understanding of this above-mentioned principle.

Types Of Nuisance

There are two type of Nuisance:
  • Public Nuisance
  • Private Nuisance

Public Nuisance:
A public nuisance is an act affecting the public at large, or some considerable portion of it, and it must interfere with rights, which member of the community might otherwise enjoy. Act which seriously interfere with the health, safety, comfort and convenience of the public or which tend to degrade public morals have always been considered a public nuisance.
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance defined by the Indian Penal Code.

Section 268 of the Indian Penal Code, defines it as:
an act or illegal omission which causes any common injury, danger or annoyance, 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 occasion to use any public right.

Simply speaking, public nuisance is an act affecting the public at large, or some considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy.

Thus acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered public nuisance.

Public nuisance can only be subject of one action, otherwise a party might be ruined by a million suits. Further, it would give rise to multiplicity of litigation resulting in burdening the judicial system. Generally speaking, Public Nuisance is not a tort and thus does not give rise to civil action.

In the following circumstances, an individual may have a private right of action in respect a public nuisance:
  1. He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he must show that he has suffered some damage more than what the general body of the public had to suffer.
  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 evanescent.

Without Proving Special Damage
In India under Section 91 of the Civil Procedure Code, allows civil action without the proof of special damage.

Section 91:
  1. In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted by the Advocate General, or with the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance other wrongful act.
     
  2. Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

How to file suit for public nuisance?
In India under Section 91 of the Code of Civil Procedure (CPC), in the case of public nuisance,
  • The Advocate General and
  • Two or more persons having obtained the consent in writing of the Advocate General,
    May institute a suit though no special damage has been caused for the declaration and injunction or for such other relief as may be appropriate in the circumstances of the cases.

Important Cases
In Solatu v. De Held[2], the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.

In Leanse v. Egerton,[3] The plaintiff, while walking on the highway was injured on a Tuesday by glass falling from a window in an unoccupied house belonging to the defendant, the window having been broken in an air raid during the previous Friday night. Owing to the fact that the offices of the defendant's agents were shut on the Saturday and the Sunday and to the difficulty of getting labour during the week end, no steps to remedy the risk to passers by had been taken until the Monday. The owner had no actual knowledge of the state of the premises.

It was held that the defendant must be presumed to have knowledge of the existence of the nuisance, that he had failed to take reasonable steps to bring it to an end although he had ample time to do so, and that, therefore, he had continued it and was liable to the plaintiff.

In Attorney General v. P.Y.A. Quarries,[4] In an action at the instance of the Attorney General, it was held that the nuisance form vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that injunction was rightly granted against the quarry owners restraining them from carrying on their operations.

Private Nuisance:
Private nuisance is the using or authorising the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

In contrast to public nuisance, private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. The remedy in an action for private nuisance is a civil action for damages or an injunction or both and not an indictment.

Elements of 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:
  1. Unreasonable or unlawful interference
  2. Such interference is with the use or enjoyment of land, or some right over, or in connection with the land and
  3. Damage.
Nuisance may be with respect to property or personal physical discomfort.

Injury to property
In the case of damage to property any sensible injury will be sufficient to support an action.
  1. In St. Helen Smelting Co. v. Tipping, (1865)[5] the fumes from the defendant's manufacturing work damaged plaintiff's trees and shrubs. The Court held that such damages being an injury to property gave rise to a cause of action.
     
  2. In Ram Raj Singh v. Babulal[6], the plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant's brick powdering mill, enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients.
     
  3. The Court held that when it is established that sufficient quantity of dust from brick powdering mill set up near a doctor's consulting room entered that room and a visible thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular to himself. That means he proved special damage.
     
  4. In Hollywood Silver Fox Farm Ltd v Emmett[7], A carried on the business of breeding silver foxes on his land. During the breeding season the vixens are very nervous and liable if disturbed, either to refuse to breed, or to miscarry or to kill their young. B, an adjoining landowner, maliciously caused his son to discharge guns on his own land as near as possible to the breeding pens for the purpose of disturbing A's vixens. A filed a suit for injunction against B and was successful.
     
  5. In Dilaware Ltd. v. Westminister City Council[8], the respondent was owner of a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighbouring building. The transferee of the building of the building, after the cracks were detected, was held entitled to recover reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused by the trees.

Physical discomfort
There is either excess enjoyment of the property as opposed to natural or ordinary enjoyment of the property. In case of physical discomfort there are two essential conditions to be fulfilled:
  1. In excess of the natural and ordinary course of enjoyment of the property:
    In order to be able to bring an action for nuisance to property the person injured must have either a proprietary or possessor interest in the premises affected by the nuisance.
  2. Materially interfering with the ordinary comfort of human existence
    the discomfort should be such as an ordinary or average person in the locality and environment would not put up with or tolerate.

Following factors are material in deciding whether the discomfort is substantial:
  • Degree or intensity
  • Duration
  • Locality
  • Mode of user of the property.
  1. In Broadbent v. Imperial Gas Co.[9] (1856) 7 De GM & G 436:, an injunction was granted to prevent a gas company from manufacturing gas in such a close proximity to the premises of the plaintiff, a market gardener, and in such a manner as to injure his garden produce by the escape of noxious matter.
  2. In Shots Iron Co. v. Inglis,[10] (1882) 7 App Cas 518: An injunction was granted to prevent a company from carrying on calcining operations in any manner whereby noxious vapours would be discharged, on the pursuer's land, so as to do damage to his plantations or estate.
  3. In Sanders Clark v. Grosvenor mansions Co.[11] (1900) 16 TLR 428: An injunction was granted to prevent a person from turning a floor underneath a residential flat into a restaurant and thereby causing a nuisance by heat and smell to the occupier of the flat.
  4. In Datta Mal Chiranji Lal v. Lodh Prasad,[12]: The defendant established an electric flour mill adjacent to the plaintiff's house in a bazaar locality and the running of the mill produced such noise and vibrations that the plaintiff and his family, did not get peace and freedom from noise to follow their normal avocations during the day. They did not have a quiet rest at night also.
    It was held that the running of the mill amounted to a private nuisance which should not be permitted.
  5. In Palmar v. Loder[13], : In this case, perpetual injunction was granted to restrain defendant from interfering with plaintiff's enjoyment of her flat by shouting, banging, laughing, ringing doorbells or otherwise behaving so as to cause a nuisance by noise to her.
  6. In Radhey Shiam v. Gur Prasad Sharma[14],: It was held by the Allahabad High Court held that a permanent injunction may be issued against the defendant if in a noisy locality there is substantial addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.
  7. In Sturges v. Bridgman[15], A confectioner had for upwards of twenty years used, for the purpose of his business, a pestle and mortar in his back premises, which abutted on the garden of a physician, and the noise and vibration were not felt to be a nuisance or complained of until 1873, when the physician erected a consulting room at the end of his garden, and then the noise and vibration, owing to the increased proximity, became a nuisance to him. The question for the consideration of the Court was whether the confectioner had obtained a prescriptive right to make the noise in question.

    It was held that he had not, inasmuch as the user was not physically capable of prevention by the owner of the servant tenement, and was not actionable until the date when it became by reason of the increased proximity a nuisance in law, and under these conditions, as the latter had no power of prevention, there was no prescription by the consent or acquiescence of the owner of the servant tenement.

Defences To Nuisance

There are two valid defences for nuisance:
  1. Prescription
    A title acquired by use and time, and allowed by Law; as when a man claims any thing, because he, his ancestors, or they whose estate he hath, have had possession for the period prescribed by law. This is there in Section 26, Limitation Act & Section 15 Easements Act.

    Three things are necessary to establish a right by prescription:
    1. Use and occupation or enjoyment;
    2. The identity of the thing enjoyed;
    3. That it should be adverse to the rights of some other person.
    A special defence available in the case of nuisance is prescription if it has been peaceable and openly enjoyed as an easement and as of right without interruption and for twenty years. After a nuisance has been continuously in existence for twenty years prescriptive right to continue it is acquired as an easement appurtenant to the land on which it exists.

    On the expiration of this period the nuisance becomes legalized ab initio, as if it had been authorized in its commencement by a grant from the owner of servient land. The time runs, not from the day when the cause of the nuisance began but from the day when the nuisance began. The easement can be acquired only against specific property, not against the entire world.

    In Elliotson v. Feetham[16], it was held that a prescriptive right to the exercise of a noisome trade on a particular spot may be established by showing twenty years' user by the defendant.

    In Goldsmid v. Turubridge Wells Improvement Commissioners [17], it was held that no prescriptive right could be obtained to discharge sewage into a stream passing through plaintiff's land and feeding a lake therein perceptibly increasing quantity.

    In Mohini Mohan v. Kashinath Roy[18], , it was held that no right to hold kirtan upon another's land can be acquired as an easement. Such a right may be acquired by custom.

    In Sturges v. Bridgman[19] A had used a certain heavy machinery for his business, for more than 20 years. B, a physician neighbour, constructed a consulting room adjoining A's house only shortly before the present action and then found himself seriously inconvenienced by the noise of A's machinery.B brought an action against A for abatement of the nuisance.

    It was held that B must succeed. A cannot plead prescription since time runs not from the date when the cause of the nuisance began but from the day when the nuisance began.
     
  2. Statutory Authority
    Where a statute has authorised the doing of a particular act or the use 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. Statutory authority may be either absolute or conditional.

    In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily cause a nuisance or any other form of injury.

    In case of conditional authority the State allows the act to be done only if it can be without causing nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due regard for private rights.

    In Vaughan v. Taff Vale Rly[20], The defendants who had authority by Statute to locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.

In a suit for nuisance it is no defence:
  1. Plaintiff came to the nuisance:
    E.g. if a man knowingly purchases an estate in close proximity to a smelting works his remedy, for a nuisance created by fumes issuing there from is not affected. It is not valid defence to say that the plaintiff came to the nuisance.
     
  2. In the case of continuing nuisance, it is no defence that all possible care and skill are being used to prevent the operation complained of from amounting to a nuisance. In an action for nuisance it is no answer to say that the defendant has done everything in his power to prevent its existence.
     
  3. It is no defence that the defendant's operations would not alone mount to nuisance. E.g. the other factories contribute to the smoke complained of.
     
  4. 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.
     
  5. That the nuisance complained of although causes damages to the plaintiff as an individual, confers a benefit on the public at large. A nuisance may be the inevitable result of some or other operation that is of undoubted public benefit, but it is an actionable nuisance nonetheless. No consideration of public utility should deprive an individual of his legal rights without compensation.
     
  6. That the place from which the nuisance proceeds is the only place suitable for carrying on the operation complained of. If no place can be found where such a business will not cause a nuisance, then it cannot be carried out at all, except with the consent or acquiescence of adjoining proprietors or under statutory sanction.

Remedies For Nuisanse

The remedies available for nuisance are as follows:
Injunction:
It maybe a temporary injunction which is granted on an interim basis and that maybe reversed or confirmed. If it's confirmed, it takes the form of a permanent injunction.

However the granting of an injunction is again the discretion of the Court.

Damages:
The damages offered to the aggrieved party could be nominal damages i.e. damages just to recognize that technically some harm has been caused to plaintiff or statutory damages i.e. where the amount of damages is as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.

Abatement:
It means the summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings. It is not a remedy which the law favors and is not usually advisable. E.g. - The plaintiff himself cuts off the branch of tree of the defendant which hangs over his premises and causes nuisance to him.

Conclusion
The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man's daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily.

Indian Courts in the matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of the common law system along with creating their own precedents. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.

References:
  • Penner, J. (1993). Nuisance And The Character Of The Neighbourhood. Journal of Environmental Law, 5(1), 1-29. Retrieved July 4, 2021,
  • Penner, J. E. Nuisance And The Character Of The Neighbourhood. Journal of Environmental Law, vol. 5, no. 1, 1993, pp. 1�29
End-Notes:
  1. Halsey v. Esso Petroleum Co. Ltd.[1] (1961) 2 All ER 145
  2. Solatu v. De Held[2] (1851) 2 Sim NS 133
  3. Leanse v. Egerton,[3] (1943) 1 KB 323
  4. Attorney General v. P.Y.A. Quarries,[4] (1957)1 All ER 894
  5. St. Helen Smelting Co. v. Tipping, (1865)[5] 77 HCL 642
  6. Ram Raj Singh v. Babulal[6], AIR 1982 All. 285
  7. Hollywood Silver Fox Farm Ltd v Emmett[7], (1936) 2 KB 468
  8. Hollywood Silver Fox Farm Ltd v Emmett[8], (1936) 2 KB 468
  9. Broadbent v. Imperial Gas Co.[9] (1856) 7 De GM & G 436
  10. Shots Iron Co. v. Inglis,[10] (1882) 7 App Cas 518
  11. Sanders Clark v. Grosvenor mansions Co
  12. Datta Mal Chiranji Lal v. Lodh Prasad,[12] AIR 1960 All 632
  13. Palmar v. Loder[13], (1962) CLY 2233
  14. Radhey Shiam v. Gur Prasad Sharma[14], AIR 1978 All 86
  15. Sturges v. Bridgman[15] (1879) 11 Ch D 852
  16. Elliotson v. Feetham[16] (1835) 2 Bing NC 134
  17. Goldsmid v. Turubridge Wells Improvement Commissioners [17](1865) LR 1 Eq 161
  18. Mohini Mohan v. Kashinath Roy[18], (1909) 13 CWN 1002
  19. Sturges v. Bridgman[19] (1879) 11 Ch.D. 852
  20. Vaughan v. Taff Vale Rly[20] (1860) 5 H.N. 679

    Award Winning Article Is Written By: Mr.Pranjal Singh
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