Law of Torts

Nuisance- Concept
and defences in an
action for nuisance


Submitted by: Gayatri Misra
A3221512043
BBA LLB (H)
5
th
Semester


Contents
Introduction ....................................................................... 3
Kinds of Nuisance ............................................................. 6
Public Nuisance .............................................................. 6
Private Nuisance ............................................................. 7
Essentials: ..................................................................... 8
Unreasonable interference ............................................ 8
Interference with the use or enjoyment of Land. .......... 9
Damage ....................................................................... 10
Defenses to Nuisance ...................................................... 10
Statutory Authority ................................................... 10
Prescription ............................................................. 12
Conclusion ...................................................................... 14
Bibliography ................................................................... 15






Introduction

Stephen defined nuisance to be anything done to the hurt or annoyance of the lands, tenements
of another, and not amounting to a trespass.

According to 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, smoke, fumes, gas, noise, heat, vibration, electricity,
disease, germs, animals.
The word nuisance is derived from the French word nuire, which means to do hurt, or to
annoy. The term nuisance first emerged in the thirteenth century and referred to actions that
took place on the land of the defendant, but interfered with the rights of the plaintiff. A writ of
nuisance could be obtained to take action against the defendant. This action gave rise to the
modern day private nuisance, and eventually public nuisance, which was any crime that was
committed against the crown. At this point in time the term was very widely used and vague in its
meaning; any type of wrongdoing was often termed nuisance.
Nuisance as a tort means an unlawful interference with a persons use or enjoyment of land, or
some right over, or in connection with it.
1
The interference may be in any way, e.g., noise,
vibrations, heat, smoke, smell fumes, water gas, electricity, excavation or disease producing
germs. For example in a leading case
2
, the defendant created a brick grinding machine adjoining
the premises of the plaintiff, who was a medical practitioner. The machine caused dust and

1
Bhanwarlal v. Dhasnraj, AIR 1973 Raj. 212
2
Dr. Ram Raj Singh v. Babulal, Air 1982 All 285
polluted the atmosphere. The dust entered the consulting chamber and caused physical
inconvenience to him and the patients, It was held special damages to the plaintiff had been
proved and permanent injunction was issued against the defendant.
Although, there are several similarities between nuisance and trespass as both of them unlawfully
interfere with a persons use or enjoyment of land, or some right over, or in connection with.
However, there are differences between them, on one hand; trespass is a direct, physical
interference with the plaintiffs possession of land through some materials or tangible object. On
the other hand, if interference is consequential, it amounts to nuisance. An example of trespass in
might be if a person deliberately sprays pesticides or dumps waste on your property. However, a
trespass action will not be successful unless the interference was deliberate. For example, if
pesticides being used on your neighbours property accidentally blow onto your land causing
toxic materials to be present in the air, it shall be considered nuisance. i.e., nuisance can be
committed through the medium of intangible objects also like vibrations, gas, noise, smell,
electricity or smoke. In conclusion, a trespass is actionable per se, but in an action for nuisance,
special damage has got to be proved.
In order to say that nuisance is actionable tort, it is essential that there should exist: wrongful
acts; damage or loss or inconvenience or annoyance caused to another. Inconvenience or
discomfort to be considered must be more than mere delicacy or fastidious and more than
producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or
inconvenience must be such which the law considers as substantial or material.
.
In Ushaben v. Bhagyalaxmi Chitra Mandir,
3
the plaintiffs-appellants sued the defendants-

3
AIR 1978 Guj 13
respondents for a permanent injunction to restrain them from exhibiting the film Jai Santoshi
Maa. It was contended that exhibition of the film was a nuisance because the plaintiffs
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.
In Halsey v. Esso Petroleum Co. Lt
4
.:,the defendants 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 plaintiffs house. There was proof that the smuts had damaged
clothes hung out to dry in the garden of the plaintiffs house and also paint work of the plaintiffs
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 plaintiffs house to vibrate and prevented the plaintiffs 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.






4
(1961) 2 All ER 145
Kinds of Nuisance

Nuisance is of two kinds:
i. Public or Common Nuisance
ii. Private Nuisance, or tort of Nuisance.


Public Nuisance

At common law public nuisance is a crime for which the remedy is criminal proceedings. It is
defined as an unlawful act or omission which endangers or interferes with the lives, comfort,
property or common rights of the public. Probably the most well-known example of public
nuisance is obstructing the highway, though everyday obstructions such as road repairs and
scaffolding are lawful so long as they are reasonable and do not occur for an excessive time.
Historically, public nuisance has embraced a wide number of activities, ranging from dumping
sewage into a river to playing loud music on a stereo in a public park. In its early incarnation,
offences had only a criminal nature. The law subsequently developed to allow private
individuals to bring actions if they had suffered a peculiar nuisance that was different in kind to
that suffered by the public at large. Public nuisance thus came to overlap with elements of tort
law and property law. Public nuisance is interference with the right of public in general and is
punishable as an offence. Initially, In a leading case
5
it was defined by Romer LJ as any act or omission
which materially affects the reasonable comfort and convenience of life of a class of Her Majestys

5
Attorney-General v PYA Quarries Ltd,[ 1957] 2 QB 169
subjects. Now, if the nuisance is so widespread that the community as a whole must take action,
as it would be unreasonable for a single individual to do so, then the nuisance is public.
Consequently, the public means a considerable number of persons or a section of the public. For
example, an obstruction is caused on a public way due to the digging of a trench; although, it
causes inconvenience to many persons but none can be allowed to bring a civil suit for that
otherwise there may be multiple similar suits filed. To avoid multiplicity of suits, the law makes
public nuisance an offence under criminal law.
Following a number of important cases and statutory developments the common law crime of
public nuisance has all but disappeared, and been replaced by provisions in legislation such as
the Indian Penal Code. Under section 268 of the Indian penal Code, 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.

Private Nuisance

A private nuisance is a civil wrong that affects a single individual or a definite number of persons
in the enjoyment of some private right which is not common to the public
6
. In other words, a
private nuisance is a substantial and unreasonable interference with the private use and enjoyment
of ones land. Examples include interference with the physical condition of the land, disturbing
the comfort of its occupants, or threatening future injury or disturbance. The origin of private

6
Armory Park Neighborhood Assn v. Episcopal Community Servs., 148 Ariz. 1 (Ariz. 1985).
nuisance liability is purely tortuous in character and not criminal.
7
It is to be noted that a private
nuisance exists only where one is injured in relation to a right that s/he enjoys by reason of
his/her ownership of an interest in land. Private nuisance includes all injuries to an owner or
occupier in the enjoyment of the property of which s/he is in possession.
8
The elements of a private
nuisance are satisfied if the other has property rights and privileges in respect to the use or enjoyment
interfered with, The invasion results in significant harm, The actors conduct is the legal cause of the
invasion, and The invasion is either; intentional and unreasonable, or unintentional and otherwise
actionable under the rules governing liability for negligent, reckless, or ultra hazardous conduct
Essentials:

1. Unreasonable interference;
2. Interference with the use of enjoyment of land;
3. Damage.

Unreasonable interference

Interference may cause damage to the plaintiffs 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. 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.
9


7
B & W Management, Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. 1982).
8
Couture v. Board of Education, 6 Conn. App. 309 (Conn. App. Ct. 1986).
9
Sadeleigh Denfield v, OCallaghan, (1940) A.C. 880, 903
An act which is otherwise reasonable does not become unreasonable and actionable when the
damage is caused solely due to sensitiveness of the plaintiff.
10
Nuisance is generally a continuing
wrong. A constant noise, smell or vibration is nuisance and ordinarily an isolated act of escape
cannot be considered to be nuisance.

Interference with the use or enjoyment of Land.

Interference may either cause:
i. Injury to the property itself
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. For example in a leading case
11
fumes from the defendant
companys works damaged plaintiffs trees and shrubs. The defendant was held
liable.

ii. Injury to comfort or health of occupants of certain property.

Substantial interference with the comfort and convenience in using the premises is
actionable as nuisance. There should be a serious inconvenience and interference with
the comfort of the occupiers of the dwelling house.



10
Health v. Mayor Brighton, (1908) 98 L.T. 718
11
St. Helens Smelting Co. v. Tipping, (1865) 11 H.L Cas 642
Damage

When it comes to nuisance, actual damage is required to be proved in an action for nuisance.
Under private nuisance, although damage is one of the essentials, the law will often presume it.
In a leading case
12
a cornice of the defendants house projected over the plaintiffs garden. The
court presumed rain water would fall into the garden causing damage and the same need not be
proved.

Defenses to Nuisance


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.

12
Fay v. Prentuce, (1854) 1 C.B 828
In Vaughan v. Taff Vale Rly
13
, 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:
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.
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.
It is no defence that the defendants operations would not alone mount to nuisance. E.g. the other
factories contribute to the smoke complained of.
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.

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.
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

13
(1860) 5 H.N. 679
nuisance, then it cannot be carried out at all, except with the consent or acquiescence of adjoining
proprietors or under statutory sanction.

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 legalised ab initio, as if it had been authorised 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 Sturges v. Bridgman
14
A had used a certain heavy machinery for his business, for more than
20 years. B, a physician neighbour, constructed a consulting room adjoining As house only
shortly before the present action and then found himself seriously inconvenienced by the noise of
As 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.














14
(1879) 11 Ch.D. 852
Conclusion


The concept of law of torts was to award compensation to the people who have suffered damages
due to misconduct of others. Under this law came various torts such as nuisance, negligence,
trespass, breach of trust, tort of conversion, defamation etc.
Nuisance covers acts unwarranted by law which causes inconvenience or damage to either the
individual or the public in the exercise of rights common to all subjects, acts connected with the
enjoyment of land, other environmental rights and acts or omissions.
It is of two types public nuisance and private nuisance. The tort of nuisance has been evolved
and substantiated by various case laws.
There are various defences to the nuisance as well like prescription and statutory authority





Bibliography
http://www.osler.com/NewsResources/Details.aspx?id=5578&langtype=3084
http://legal-dictionary.thefreedictionary.com/Private+Nuisance
http://articles.orlandosentinel.com/1987-05-31/business/0130260133_1_nuisance-noisy-
business-statute-of-limitations
http://environment.probeinternational.org/chapter-6-defence-statutory-authority/
http://nuisances.uslegal.com/defenses/
http://nuisances.uslegal.com/types-of-nuisances/private-nuisances/
Law of Torts, Dr. R.K. Bangia