Nuisance

The word Nuisance is derived from the French word ‘Nuire’ which means to annoy or hurt.
Nuisance as a tort means an unlawful interference with a person's use or enjoyment of land, or
some right over, or in connection with it.
Acts interfering with comfort, health or safety are the examples of it. The interference may be any
way, e.g., noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease
producing germs.
The main principle is "use your property so as not to interfere with that of others" (Sic utere tu et
alienum non laedas).
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 un lawful
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.
Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment
of it any results from an improper activity by another individual.

Definitions
Bermingham : Nuisance is an unlawful interference with a person’s use and enjoyment of land, or
of some right over, or in connection with it. Hence it is an injury or inconvenience faced by a
person in the use of his property because of another person who unreasonably uses his own
property in a way which negatively affects the former.
Stephens: Nuisance is anything done to the hurt or annoyance of the lands, tenements of another,
and not amounting to trespass.
Salmond: The wrong of Nuisance consists in causing or allowing without lawful justification the
escape of any deleterious thing from his land or from elsewhere into land in possession of the
plaintiff, e.g., water, fumes, smoke, gas, noise, heat, vibration, electricity, disease, germs, animals

Kinds of Nuisance
Nuisance is of two kinds :
(i) Public or Common Nuisance
(ii) Private Nuisance, or Tort of Nuisance.
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Public Nuisance
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is
interference with the right of public in general and is punishable as an offence.
"A person is guilty of public nuisance who does any act, or is guilty of an illegal omission,
which causes any common injury, danger or annoyance to the public or 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."
Sec. 268, I.P.C.
Obstructing a public way by digging a trench, or constructing structures on it are examples of
public nuisance. Although such obstruction may cause inconvenience to many persons but
none can be allowed to bring a civil action for that, otherwise there may be hundreds of actions
for a single act of public nuisance. To avoid multiplicity of suits, the law makes public nuisance
only an offence punishable under criminal law.

Private Nuisance or Tort of Nuisance

In certain cases, when any person suffers some special or particular damage, different from
what is inflicted upon public as a whole, a civil right of action is available to the person injured.
What is otherwise a public nuisance, also becomes a private nuisance so far as the person
suffering special damage is concerned. The expression "special damage" in this context means
damage caused to a party in contradiction to the public at large. The proof of special damage
entitles the plaintiff to bring a civil action for what may be otherwise a public nuisance.
In Dr. Ram Raj Singh v. Babulal [A.I.R. 1982 All 285], the defendant created a brick grinding
machine adjoining the premises of the plaintiff, who was a medical practitioner. The brick
grinding machine generated dust, which polluted the atmosphere. The dust entered the
consulting chamber of the plaintiff and caused physical 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 Campbell v. Paddington Corporation [(1911) 1 K.B. 869], the plaintiff was the owner of a
building in London. The funeral procession of King Edward VII was to pass from 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 date of the said 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
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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.

Essentials
To constitute the tort of nuisance, the following essentials are required to be proved :
1. Unreasonable interference
2. Interference with the use of enjoyment of land
3. Damage

1. 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.
If I have a house by the side of the road, I cannot bring an action for the inconvenience
which is necessarily incidental to the traffic on the road. Nor can I sue my neighbour if his
listening to the radio interferes with my studies. So long as the interference is not
unreasonable, no action can be brought.
"A balance has to be maintained between the right of the occupier to do what he likes with
his own, and the right of his neighbour not to be interfered with."

In Radhey Shyam v. Gur Prasad [A.I.R. 1978 All. 86.], Gur Prasad and another filed a suit
against Radhey Shyam and others for a permanent injunction to restrain them from
installing and running a flour mill in their premises, It was alleged that the said mill would
cause nuisance to the plaintiffs, who were occupying the first floor portion of the same
premises inasmuch as the plaintiffs would lose their peace on account of rattling noise of
the flour mill and thereby their health would also be adversely affected. It was held that
substantial addition to the noise in a noisy locality, by the running of the impugned
machines, seriously interfered with the physical comfort of the plaintiffs and as such, it
amounted to nuisance, and the plaintiffs were entitled to an injunction against the
defendants.

In Ushaben v. Bhagya Laxmi Chitra Mandir [A.I.R. 1978 Guj. 13. ], the plaintiffs-
appellants sued the defendants-respondents for a permanent injunction to restrain them
from exhibiting the film "Jai Santoshi Maa". It was contended that exhibition of the film
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was a nuisance because the plaintiff's religious feelings were hurt as Goddesses Saraswati,
Laxmi and Parvati were defined as jealous and were ridiculed. It was held that hurt to
religious feelings was not an actionable wrong. Moreover, the plaintiffs were free not to
see the movie again. The balance of convenience was considered to be in favour of the
defendants and as such, there was no nuisance.

Sensitive Plaintiff
An act which is otherwise reasonable does not become unreasonable and actionable when
the damage, even though substantial, is caused solely due to sensitiveness of the plaintiff
or the use to which he puts his property. A person cannot increase the liabilities of his
neighbours by carrying on an exceptionally delicate trade.

Malice
In Mayor of Bradford Corp. v. Pickles [(1895) A.C. 587], the House of Lords held that if
an act is otherwise lawful, it does not become unlawful merely because the same has been
done with an evil motive.

2. Interference with the use or enjoyment of Land

Interference may cause either :
(1) injury to the property itself
(2) injury to comfort or health of occupants of certain property.

(1) Injury to property

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. It may be by allowing the branches of a tree to overhang on the land of
another person, or the escape of the roots of a tree, water, gas, smoke or fumes, etc. on
to the neighbour's land or even by vibrations.
In St. Helen's Smelting Co. v. Tipping [(1865) 11 H.L. Cas 642], fumes from the
defendant company's works damaged plaintiff's trees and shrubs. Such damage being
an injury to property, it was held that the defendants were liable. The plea that locality
was devoted to works of that kind was unsuccessful.

(a) Interference with the right of support of land and buildings - A person has a
"natural" right to have his land supported by his neighbour's3 and therefore removal
of support, lateral or from beneath is a nuisance. The natural right of support from
neighbour's land is available only in respect of land without buildings. Therefore,
such a right is not available in respect of buildings or other structures on land.
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(b) Interference with right to light and air - The right to light and air may be acquired
by an easement. The prescriptive right of easement of access and use of light and
air can be acquired if the light has been : (i) peaceably enjoyed, (ii) as an easement,
(iii) as of right, (iv) without interruption, and (v) for 20 years. When there is
substantial infringement of an easement of light and air, the same is actionable by
an action for damages according to Section 33 of the Indian Easements Act.

(2) Injury to comfort or health

Substantial interference with the comfort and convenience in using the premises is
actionable as a nuisance. There should be "a serious inconvenience and interference
with the comfort of the occupiers of the dwelling house.” The standard of comfort
varies from time to time and place to place. Inconvenience and discomfort from the
point of view of a particular plaintiff is not the test of nuisance but the test is how an
average man residing in the same area would take it.

3. Damage
Unlike trespass, which is actionable per se, actual damage is required to be proved in an
action for nuisance. In the case of public nuisance, the plaintiff can bring an action in tort
only when he proves a special damage to him. In private nuisance, although damage is one
of the essentials, the law will often presume it.

Remedies

The remedies for private nuisance are—

(1) Abatement.
(2) Damages.
(3) Injunction.

1. Abatement
Abatement means the removal of a nuisance by the party injured without recourse to legal
proceedings. The removal must be peaceable, without danger to life or limb, and if it is
necessary to enter another’s land or property, after notice to remove the same.
The abatement of a nuisance by a private individual is a remedy which the law does not
favour. Under the Indian Easements Act, 1882 the dominant owner cannot himself abate a
wrongful obstruction of an easement.
A private individual cannot abate a public nuisance, unless it causes him some special and
peculiar harm.
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Local Bodies, like a Municipality, have generally statutory powers to abate a public
nuisance and when they unreasonably refuse to exercise their power of abatement, a
petition under Article 226 of the Constitution can be filed for directing them to exercise the
statutory power of removing a public nuisance.

2. Damages
The measure of damages is the diminution in the saleable value of property in
consequence of nuisance. In cases of continuing nuisance, the court cannot lawfully
give damages in respect of any injury subsequent to the day of the commencement of
the action, for every day that the nuisance continues there is a fresh cause of action in
respect of which further damages are recoverable.

3. Injunction
In order to obtain an injunction, it must be shown that the injury complained of as
present or impending is such as by reason of its gravity or its permanent character, or
both, cannot be adequately compensated in damages. The injury must be either
irreparable or continuous.

Defences

1. Prescriptive right to commit nuisance (Prescription)

A right to do an act, which would otherwise be a nuisance, may be acquired by
prescription. If a person has continued with an activity on the land of another person
for 20 years or more, he acquires a legal right by prescription, to continue therewith in
future also. A right to commit a private nuisance may be acquired as an easement if the
same has been peaceably and openly enjoyed as an easement and as of right, without
interruption, and for 20 years.
S. 15, Indian Easement Act and S. 25, Limitation Act, 1963.
However, the period of 20 years cannot commence to run until the act complained of
begins to be a nuisance.

In Sturges v. Bridgman [(1879) 11 Ch. D. 852.], the defendant, a confectioner had a

kitchen in the rear of his house. For over twenty years, confectionery materials were
pounded in his kitchen by the use of large pestles and mortars, and the noise and
vibrations of these were not felt to be a nuisance during that period by the plaintiff, a
physician, living in the adjacent house. The physician made a consulting room in the
garden in the rear in his house and then for the first time, he felt that the noise and
vibrations caused in the confectioner's kitchen were a nuisance and they materially
interfered with this practice. The court granted an injunction against the confectioner,
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and his claim of prescriptive right to use mortars and pestles there, failed because the
interference had not been an actionable nuisance for the preceding period of 20 years.
Nuisance began only when the consulting room was built by the physician at the end
of the house.

2. Statutory Authority
An act done under the authority of a statute is a complete defence. If nuisance is
necessarily incident to what has been authorized by a statute, there is no liability for
that under the law of torts.
Statutory authority may be either absolute or conditional.
(a) 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.
(b) (b) 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.