May 17, 2021

Law of Torts: Nuisance

law of torts

Introduction

The term “Nuisance” is derived from the French word “nuire” which is further derived from the Latin word “nocere” which means “to cause hurt or to annoy.” If we consider the meaning of the concept of nuisance in common parlance it is nothing, but an inconvenience to people or others. But in law, this concept has little restrictive meaning as law does not consider “mere inconvenience” as an offense of nuisance. Various jurists have defined this concept which helps us to understand the legal perspective of it.

According to Blackstone nuisance is something that “worketh hurt, inconvenience or damage[1].” The description given by him simply provides us the basic meaning of the concept.

Salmond defined it in a more extensible manner. According to him “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, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.[2]”

Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands tenements of another, and not amounting to trespass.[3]”

Thus from above all definitions, we can conclude that nuisance is an injury or an unlawful interference to the use or enjoyment, or some right of a person in possession of a property. It is an act of unlawful, unreasonable or unwarranted annoyance to the plaintiff’s use or right over the land.

Types of Nuisance

Nuisance can be classified into two kinds: 1. Public Nuisance, 2. Private Nuisance

Public Nuisance

Section 3(48) of the General clauses Act, 1897 defines a public nuisance as it is defined in the Indian penal code (IPC). So we need to refer IPC for its definition. IPC defines it under section 268 where it means an act or omission which is illegal and results in common injury, danger, or annoyance to the people who dwell or occupy the property and is also extended to include people who are in the vicinity. Such annoyance must infringe the certain rights of those people.

Thus public nuisance can include all the acts which affect general public or a large section of the community. Some of its examples are- where a person operates a trade which causes loud noise,[4] keeping inflammable substances in large quantity,[5] etc.

In the case of Ram Raj Singh v. Babulal[6] where the defendants installed a brick grinding machine adjacent to the plaintiff’s land who is medical practitioner, it was held that the dust from the machine causes public nuisance as it affects all the patients or visitors too.

In certain circumstances, an individual can have a private right to the action in case of a public nuisance if he can prove following-

  • He must show a personal injury i.e. beyond what is suffered by general public.
  • Such injury must be appeared to be of a substantial character.
  • Such injury must be direct in nature.

Though in India under Section 91 of the Civil Procedural Code (CPC) allows a civil action in case of a public nuisance without any proof of special damage. Such suit can be instituted by the Advocate General or by two or more persons with the leave of the court.

Private Nuisance

In contrast to public nuisance, the concept of private nuisance involves injury to a particular individual and not to public at large. In such cases, the remedy of civil action or injunction or both is available to such individuals. The remedy of indictment doesn’t exist in case of private nuisance.

The law of private nuisance protects the interest of the occupier of land. It seeks to maintain a position where an individual can exercise his right to enjoy his property while not causing inconvenience to his neighbors.

Elements of Private Nuisance

There must be an unlawful or unreasonable interference.

An act of nuisance can be proved only in the situation where someone unlawfully or without any cause which is reasonable in nature interferes with the peaceful enjoyment of plaintiffs in his property. Thus the cases where someone under legal authority ends up causing the offence of nuisance while carrying on the authorized work, he would not be held liable.

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[7] 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.

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[8] 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,[9] 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.

Now when we come to the case where damage is in the form of physical discomfort, the following two conditions must be fulfilled-

  • a. There must be material interference with the ordinary comfort of human existence.
  • b. Such interference is caused by an activity that is in excess of ordinary use or enjoyment of land.

Remedies for Nuisance

The following remedies are available for nuisance-

· Injunctions

It is one of the most important remedy available in the cases of nuisance, which is discretionary in nature. Being a discretionary remedy it is upon the court to exercise its discretion whether to grant such or not, though court must always act judicially while deciding so.

In the case of Miller v. Jackson[10] plaintiff constructed his house near the cricket playground. When he complained about the nuisance from a cricket ball, the court refused to give him the remedy of an injunction because firstly he must have known about the existence of such ground, and secondly, the court considered the interest of the entire village by having a ground to play.

The court can issue a temporary injunction that is interim in nature. Such a temporary injunction can either be confirmed or reversed. The cases where it is confirmed, it becomes a permanent injunction.

· Damages

Damages are monetary compensation given to the plaintiff. It could be nominal damages (which is simply given to recognize the harm suffered by the plaintiff) or statutory damages (which is given as per a statutory law) or exemplary damages (which is given to set an example for everyone so that such is not repeated in future).

· Abatement

This is a self-help remedy, where the injured person doesn’t take a legal course to seek a remedy. This remedy is usually not advisable as even courts do not favor it. One such example of this kind of remedy is where the plaintiff himself cuts the branches of the tree of the defendant which causes him a nuisance.

Defenses to Nuisance

Following are the valid defenses available for the act of nuisance-

· Prescriptive right to commit nuisance

This concept is embodied in section 26 of the Limitation Act and Section 15 of the Easement Act, which is that a title can be acquired by use and time because of continuous possession of the property. This defense can be avail in case of nuisance when defendant can show a peaceful open enjoyment of property as an easement for 20 years.

To establish a right by prescription following conditions must be fulfilled-

a. Enjoyment or use

b. Identity of the thing which is enjoyed.

c. Such enjoyment must be adverse to the right of some person

In the case of Elliotson v. Feetham,[11] the court approved the prescriptive right to a noisome trade when the defendants were able to prove 20 years of its existence.

In Sturges v. Bridgman[12], defendants were operating certain heavy machines for more than 20 years in their place. Plaintiff who was a medical practitioner constructed a consulting room adjacent to defendant’s house. In the present case, the court doesn’t allowed defendant to claim an easement right as the period of 20 years can be counted from the day plaintiff constructed such room.

· Statutory Authority

When certain power is conferred by statutory law and such is exercised with due care and skillfully without exceeding the conferred limit, the defendant can claim a defense against offence of nuisance. In the case, of Vaughan v. Taff Vale Rly[13] where the defendants were having the statutory authority to run a locomotive engine on their railway, it was held that they cannot be held liable for the fire caused by the sparks of such engine.

· Act of God

Defendants can claim a defense of “act of God” as those are beyond human power or contemplation and are caused by a superior natural force. In Nicholas v. Marsland[14] where an unprecedented rainfall caused bursting of the embankments of the lake, it was held plaintiff cannot be made liable to the flood caused by such lakes. As such was an act of god which was unexpected and beyond human control.

· Consent of plaintiff

This is basically a defense of ‘Volenti non fit injuria’ where the plaintiff has either explicitly or impliedly consented for such an act of nuisance. In Kiddle v. City business properties[15] the plaintiff was a tenant in the defendant’s house where he was occupying the ground floor of the house. The gutter of the landlord’s house was blocked even at the time when plaintiff was taking the house on rent. Thus defendant was here allowed to claim this defense when damage was caused to plaintiff’s stock as he consented for such.

· Necessity

When the offense of nuisance is committed in order to prevent a threat or harm, the defendant can claim the defense of necessity.

· Trifles

The latin maxim “De minimis non curat lex” means that law does not concern itself with matters that are insignificant and/or immaterial. Thus no remedy is available to the plaintiff in a matter which is immaterial in nature. For example, where the shadow of the defendant’s tree falls on the plaintiff’s land, he cannot claim remedy against offense of the nuisance.

Conclusion

From the above all discussion one thing gets very clear that the law of nuisance is an uncodified one. It has developed by the Judiciary through various case laws. This law plays an important role for general peace as it ensures that one person’s right to do whatever they pleases in his property not infringes upon other person’s right to enjoy his property.

References

[1] Blackstone, op. cit., Volume 3, 191.

[2] John Salmond, “Salmond on Torts” (16th ed, Sweet & Maxwell, London, 1973) p 52.

[3] Sir J. F. Stephen, Digest of the Criminal Law, p.120.

[4] Lambton v. Mallish, (1894) 3 Ch 163.

[5] Lister’s Case, (1856) 1 D&B 118.

[6] AIR 1982 All. 285.

[7] AIR 1960 All 632.

[8] (1865) 77 HCL 642.

[9] (2001) 4 All ER 737 (HL).

[10] (1977) 3 Ell ER 388.

[11] (1835) 2 Bing NC 34.

[12] (1879) 11 Ch.D. 852.

[13] (1860) 5 H.N. 679.

[14] (1876) 2 ExD 1.

[15] [1942] 1 KB 269.


Author Details: Riddhi Daga (Hidayatullah National Law University)

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