Nuisance and its essentials

INTRODUCTION

Law of torts has recognized nuisance as a civil wrong. The term “nuisance” is derived from the French word “nuire,” which meaning “to cause pain, hurt, or irritate”. Latin word for nuisance is “nocere,” which means “to create injury.” It can be derived from this that nuisance is a wrongful act which causes pain or hurt.

Every person has a right to enjoy benefit or use of his land without any disturbance. Nuisance is when such right of an individual is breached. It means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. Nuisance is damage to person’s right to undisturbed enjoyment of his property caused by the inappropriate use of other persons.

The tort of nuisance occurs, if someone else’s inappropriate use or enjoyment of his property results in an illegal interference with his pleasure or use of that property or part of his rights over it or in connection with it.

Nuisance implies indirect interference with the land. It is different from trespass in this sense that trespass is direct interference. Trespass is interference with possession of one’s land while nuisance is interference with enjoyment of one’s land.

DEFINITIONS OF NUISANCE

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 and electricity, etc.

KINDS OF NUISANCE

There are two kinds of nuisance: public nuisance and private nuisance.

Public Nuisance

Public nuisance is nuisance to general public. It is creating annoyance or disturbance in the use of land by the general public and not anyone in particular. Public nuisance is interference with the right of public in general and is punishable as an offence.

Private nuisance is a civil wrong whereas public nuisance is a crime. It is punishable under Indian Penal Code. To be liable for public nuisance, the defendant must have interfered with public property, or with a right common to the public. Obstructing a public was by digging a trench, or constructing structures are examples of public nuisance.

Sec. 268 of IPC says that a person is guilty of a 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 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.

It is not sufficient that a person has done an illegal act or omission. It is necessary to be proved that there has been damage or suffering because of that act and the damage should to the public at large and not a single individual. Hence, public nuisance is committed when these conditions are satisfied.

Case for Public Nuisance

There is a case of Dr. Ram Raj Singh v. Babulal[1] for the tort of public nuisance. Defendant created a brick grinding machine adjoining the premises of the plaintiff, who was a medical practitioner. The brick grinding machine generated dust and polluted the atmosphere and the dust entered the consulting chamber of the plaintiff and caused physical inconvenience to him and his patients. Their red coating on clothes due to dust was also apparently visible.

It was held that the 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 this case, although there was nuisance to general public, the plaintiff had more damage so he was awarded with special damage apart from the general public.

Private Nuisance

Private nuisance is the second type of nuisance. It is nuisance to a specific person as opposed to public at large. It is one in which another person interferes with a person’s use or enjoyment of his property. It may also cause harm to the owner of the property by physically harming it or interfering with his enjoyment of it.

In contrast to public nuisance, private nuisance impairs an individual’s use or enjoyment of property as opposed to the public or society at large. The remedy for private nuisance is a civil lawsuit for damages or an injunction, or both.

There are three essentials required to sue under the tort of private nuisance.

1.     Unreasonable Interference

It is essential that there must be unreasonable interference with one’s enjoyment of his land. This interference may cause two damages :-damage to the plaintiff’s property and personal discomfort in enjoyment of land.

Unreasonable here implies that interference should be more than normal and bearable interference. Every person has to bear up with some noise, smell or vibration while living in a society. This is because other persons also have rights and such minor disturbance can be created in enjoyment of the same and such interference is reasonable and does not constitute tort.

The defendant in J. Chandrasekaran v. V.D.Kesavan[3] fixed electric meters on the wall of the plaintiff and who had accused to it. Madras High Court held the fixtures to be nuisance. Court said that any length of period of such use by the defendant would not ensure benefit of use concerned unless specifically law enabled him to do so.

There is an exception of sensitiveness to reasonability test.  If the plaintiff is more sensitive than a reasonable man, then any annoyance to him cannot be brought under nuisance. A certain amount of traffic might be negligible for a reasonable man. But, same noise can be extremely disturbing for a sensitive or ill old man.

2.     Interference with use or enjoyment of land.

Interference may be to the property or to the comfort of the living being.

Injury to property

An unauthorized and unreasonable interference with the use of property of another person. Interference can be through tangible object or intangible. It may be allowing branches of a tree to reach the porch of another person. Reaching of unreasonable smoke, fire, gas amounts to nuisance in intangible form.

In St. Helen’s Smelting Co. v. Tipping[4], fumes from the defendant’s company damaged plaintiff’s tress and branches. Court held that defendants were liable because such interference was damage to the property and the plea of common work there was rejected.

It is necessary for nuisance that the plaintiff must have ownership to the land and must also have right to get such benefit. If he does not have right to receive that benefit, he will not be entitled to damage on its removal. It is irrelevant that plaintiff has been receiving such benefit for a long period of time.

Injury to comfort or health

To constitute nuisance, interference to the comfort of a person should be unreasonable and a mere trifling inconvenience is not enough. There should be substantial discomfort to the plaintiff. The rule is De minimus non curat lex, meaning law does not account of every trifling matters.

The standard of comfort varies from time to time and person to person. It is circumstantial. A particular person may not consider something as nuisance but other can. The test is to know what an average man will think of the situation.

Disturbance to the neighbours by playing music in day is a reasonable act. But, playing the same music in night so as to disturb the sleep of the neighbor constitutes nuisance.

In Radhey Shyam v. Gur Prasad [5], Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for permanent injunction restraining the defendant from installing and running a flour mill in the premises occupied by the defendant and it was for a permanent injunction from running and continuing to run an oil expeller plant. The plaintiff alleged that mill was causing lot of noise which in turn was affecting the health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant was causing a nuisance to the plaintiff and affecting his health severely.

3.     Damage

In the case of nuisance, actual damage is required to be proved. In case of public nuisance, special damages have to proved. For the case of private nuisance, although damage is needed, court many times presumes damage.

In Fay v. Prentice[6], a cornice of the defendant’s house projected over the plaintiff’s garden. It was held that the mere fact that the cornice raises a presumption of fall of rainwater into and the damage of the garden and need not be proved. This was a case of private nuisance and defendant was held liable.

DEFENCES AVAILABLE FOR NUISANCE

There exist few defences for the tort of nuisance. By taking these defences, the defendant can save himself from the liability. These are:-

1.    Prescriptive right to commit nuisance

If a person acquires certain right on a land for more than 20 years, he acquires legal right by prescription. Similarly, it is with nuisance. If a person continues private nuisance peaceably with easement and without objection for period of more than 20 years, the nuisance becomes legalised void ab initio. It means that now a complaint cannot be brought for nuisance even before the time of 20 years.

In Sturgis v. Bridgman, the defendant had a kitchen in the rear of his house. For over twenty years, confectionary materials were pounded in his kitchen by the use of large pestles and mortars. The vibrations of these were not felt to be nuisance during that period by a physician.

The physician made a consulting room in his rear of the house and for the first time felt vibrations. Defendant was held liable and injunction was granted because nuisance did not precede for twenty years. Nuisance began only when consulting room was built.

2.    Statutory authority

When a legislation authorises the performance of a certain conduct or the use of land in a specific manner, all remedies, whether by action, indictment, or charge, are forfeited. It is assumed that all reasonable precautions have been taken. Statutory authority might be absolute or constrained.

When there is an absolute power, the legislation enables the act and it is not essential that the act must produce a nuisance or any other type of harm. In the case of conditional authority, the state authorises the act to be performed only if it can be performed without causing annoyance or any other kind of hurt.

CONCLUSION

Indian courts borrowed a lot of rules as well as precedents from English Courts. The concept of nuisance is also borrowed from English courts. Nuisance is a complex area of tort law, involving questions of law, society, and economics. It potentially covers any conduct which has a significant, detrimental impact on the use of property, so the range of nuisance cases can be very broad. Courts have taken different approaches to questions of nuisance, so the legal analysis will vary depending on which jurisdiction the case is brought.


[1] Dr. Ram Raj Singh v. Babulal A.I.R. 1982 All. 285.

[2] Sturges v. Bridgman 1979 11 Ch. D. 852.

[3] J. Chandrasekaran v. V.D.Kesavan A.I.R. 2013 (NOC) 316 Mad.

[4] St. Helen’s Smelting Co. v. Tipping 1865 H.L. Cas 642.

[5] Radhey Shyam v. Gur Prasad AIR 1978 All 86.

[6] Fay v. Prentice (1854) 1 C.B. 828.

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