NUISANCE UNDER THE LAW OF TORT

INTRODUCTION

The word ‘nuisance’ has been derived from the French word “nuire” which means ‘to hurt or annoy someone’. The word ‘nuisance’ in its legal sense means simply ‘annoyance’ or harm and indeed the element of unlawful ‘annoyance’ is the only thing common to all nuisances. Therefore nuisance means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. It may be interfering with a person’s comfort, health or safety. Nuisance is generally a continuing wrong and a stray act is ordinarily not a nuisance. Nuisance is always concerned with invasion of interest in the enjoyment of land. For example – If A lives in a thickly populated town. He opens a kiln and burns bricks in his compound and thus fills the atmosphere with smoke. By this act A causes discomfort to neighbourers.

Nuisance defined by eminent jurists –

According to Stephen “nuisance has been defined to be anything done to hurt or annoyance of the lands, tenements or hereditaments of another” not amounting to trespass.

According to Salmond “ the wrong of nuisance consists in allowing or causing without lawful justification but not so as to amount to 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.”

Essentials of Nuisance –

  1. Unlawful interference – Every harm which is done to a person’s property or interference with his personal comfort or health cannot be referred to as nuisance. To constitute the act done as nuisance the interference should be unreasonable and what is unreasonable depends on the facts and circumstances of each case.
  2. Interference with the use of or enjoyment of land – In this point the interference is of two kinds – injury to the property or injury to the health and comfort of person. The interference with a person’s comfort must be of substantial interference with an ordinary and reasonable standard of comfort and considered in the light of the circumstances, time and place.
  3. Damage/ Loss – Nuisance is not actionable per se and actual damage must be proved by the plaintiff. In case Lemmon vs. Webb, it was held that to plant a tree on one’s own land infringes no right and if the tree grows over the soil of other no action lies unless damage can be proved.

KINDS OF NUISANCE –

  1. Public Nuisance – Public Nuisance is interference with public right and generally a criminal wrong. Under section 268 of IPC public nuisance is a crime. It means interference with the rights of public at large such as brothel keeping, digging a trench on a high-way etc. any nuisance is public which materially affects the reasonable comfort and convenience of life. But no individual can bring an action against a public nuisance. If a person wants to bring an action against public nuisance-
  • He must show a particular injury to himself beyond that which is suffered by the rest of the public.
  • He must show that the injury was direct and substantial.

In case Rose vs. Miles the defendant had stationed his boat in a narrow stream of a river. Due to this obstruction,  the plaintiff could not take his boat to the ferry and had to spent a more money on loading and unloading of goods through land. It was held that the plaintiff entitled to bring the action because he had suffered more damage than that suffered by others.

  1. Private Nuisance – Private Nuisance is a civil wrong. Private Nuisance is interference with the individual right and is a civil wrong or tort. There is a tortious liability and a person can  be sued in tort. Thus we may define it as: “private nuisance is some unauthorized user of a man’s own property causing damage to property of another or some unauthorized interference with the property of another causing damage.” The law relating to private nuisance mainly depends upon the Latin maxim sic ulter utalienum – Non leadas i.e., so use your own property as not to injure others.

DEFENCES IN NUISANCE-

A defendant in an  action for nuisance may take up the following defences-

  1. Grant – When the defendant had right under the terms of contract to do an act of nuisance, no action can be brought against him.
  2. Prescription – A right to commit a private nuisance can be acquired as an easement by prescription. So a person may be 20 years user gain right to pour foul water into another’s stream. It must be borne in mind that it is not sufficient for the defendant to prove that the act which now causes the nuisance has been continued for 20 years.
  3. Statutory authority – When a statute authorizes the doing of a particular act or the use of land in a particular way that all the remedies whether by indictment or action or charge, are taken away provided that necessary reasonable precaution has been taken. The statute authority may be absolute or conditional.

REMEDIES FOR NUISANCE –

In a tort of nuisance following remedies are available to the persons wronged –

In case of public nuisance the following remedies are available under the criminal law and civil law –

  • Under the criminal law – In section 268 of IPC public nuisance is a crime. According to this section 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 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 have occasion to use any public right.
  • Under the civil law – Under section 91 of CPC in the case of public nuisance the Advocate General, or 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 a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.

In case of private nuisance the plaintiff can avail following remedies –

  • Abatement – A person injured by a nuisance may abate it which means he may remove that which causes the nuisance. In Lemon Webb, the house of Lords, held that an occupier could lawfully remove those branches of his neighbor’s tree which projected above his own land and interfered with the growth of his own trees.
  • Damages – The person complaining of a nuisance may file a suit for damages. The measure of damages is always the pecuniary value of that which the plaintiff has been deprived of by the nuisance whether it be business profit, land value, damages to crop or the like.
  • Injunction – A person complaining of a nuisance may sue for restraining the defendant from using his property in such a way as not to cause nuisance. In an  action for nuisance the plaintiff has to prove – 1. That he has some interest in the property to the enjoyment of which he complains on to which some sensible injury is caused and 2. That there has been some violation by the defendant or his agent of some of the rights already discussed.

WHO CAN SUE FOR NUISANCE –

A plaintiff can only sue for nuisance only if he has an interest in the land affected.

  • The occupier
  • The owner
  • A reversioner
  • A licensee

CONCLUSION

The notion of nuisance can be related to the day to day activities of an individual. The laws made against nuisance are almost uncodified save the criminal aspect of Public Nuisance. Nuisance as a tort got comprehensiveness through a plethora of judgements  along with the works of many eminent jurists. Indian Courts have adopted many things from English principles as well as from the common law system alongwith creating their own precedents. This leads to a sound system of law ensuring fairness and justice to all the parties affected by nuisance.

 

 

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