Nuisance under Law of Torts: Concept and Explanation

By | May 28, 2020
Nuisance under Law of Torts

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Nuisance under Law of Torts: Concept and Explanation | Overview

This article deals with nuisance as it is the most frequently pled common law action in environmental litigation. The law of nuisance protects the right of the property owner or the right of the person to use and enjoy the property and his liberty. This article gives a clear picture of the various dimensions of nuisance under the law of torts.

Nuisance under Law of Torts

The word nuisance is derived from the French word nuire, which meansto do hurt, or to annoy’. Blackstone describes nuisance as something that “worketh hurt, inconvenience, or damage.” Nuisance has been defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to trespass.[1]

Trespass is a direct interference and is actionable per se. But nuisance is generally consequential and is actionable only on the proof of actual damage.

Nuisance is an unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it.

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”.[2]

A nuisance may be caused by negligence, and there may be cases in which the same act or omission will support an action of either kind, but, generally speaking, these two classes of actions are distinct, and the evidence necessary to support them is different. Nuisance is no branch of the law of negligence, and it is no defence that all reasonable care to prevent it, was taken.

I. Essentials of nuisance

  1. Wrongful act (unlawful interference)

For an act to constitute nuisance it must be prima facie wrongful or it should be an unlawful interference with a person or his property.

  1. Actual damage/ loss

Inconvenience or annoyance caused to another which the law considers as substantial or material as opposed to sensitivity or delicacy.

In Ushaben v. Bhagyalaxmi Chitra Mandir[3], 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 the exhibition of the film was a nuisance because the plaintiff’s religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous and were ridiculed.

The court dismissed the plea stating that hurt to religious feeling was not an actionable wrong and the Plaintiff is free to not watch the movie. Hence, it was held that in order to claim damages for Nuisance, the Interference shall be in a state of continuing wrong.

II. Types of nuisance

  1. Public nuisance
  2. Private nuisance

1. Public nuisance

A public nuisance is an act affecting the public at large, or some considerable portion of it, and it must interfere with rights, which members of the community might otherwise enjoy. Acts which seriously interfere with the health, safety, comfort and convenience of the public generally, or which tend to degrade public morals have always been considered a public nuisance.

Example: carrying on trades which cause offensive smells, or intolerable noises, keeping inflammable substance gunpowder in large quantities, drawing water in a can from a filthy source.

Section 268 of the Indian Penal Code, defines a public nuisance as,

“an act or illegal omission which causes any common injury, danger or annoyance, 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.”

In a simple sense, a public nuisance is any act which creates an obstruction in the exercise of any public right. A public nuisance is an act which affects the public at large. For instance, an act that degrades public morals, health etc.

Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance:

  • He must show that he has suffered some damage more than what the general body of the public had to suffer.
  • Such injury must be direct, and not a mere consequential injury, as where one way is obstructed, but another is left open. In such a case, the private and particular injury is not sufficiently direct to give a cause of action.
  • The injury must be shown to be of a substantial character, not feeling or evanescent.

Thus, in order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular, direct and substantial. The object of this rule is to avoid multiplicity of litigation.

Public nuisance can only be the subject of one action; otherwise, a party might be ruined by a million Suits. It depends in a great measure upon the number of houses and the concourse of people in the vicinity. An indictment will fail if the nuisance complained of, only affects one or a few individuals. Again, no length of time can legalize a public nuisance, though it may supply defence to an action by a private person.

How to file a suit for public nuisance?

In India under Section 91 of the Code of Civil Procedure, in the case of public nuisance,

  1. the Advocate General, or
  2. 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 the declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.

Important Cases/ Illustrations

  1. In Soltau v. De Held[4]The plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.
  2. The Land Mortgagee Bank of India v. Ramanand[5] – The plaintiffs were owners of a building containing a large number of rooms and had derived a considerable income. The defendants were owners of an adjacent cotton mill which was erected after the occupation by the plaintiffs of their building. Owing to the noise and smoke of mill certain rooms in the building remained unlet. In an action against the defendants, the plaintiffs obtained compensation and an injunction prohibiting any increase of smoke cotton fluff, or noise of machinery, beyond what subsisted at the time of the decree.
  3. Campbell v. Paddington Corporation [6].- The plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that the funeral procession of King Edward VII was to pass. One agreed to take and pay for seats on the first and second floors of the house in order to see the procession. The defendants caused a stand to be erected across a certain highway to enable the members of the Council and their friends to view the procession. This stand was a public nuisance and is obstructed the view of the main thoroughfare from the windows of the first floor of the plaintiff’s house. In an action by the plaintiff to recover images for the wrongful interference with the use and enjoyment of her house and the special loss he had sustained, it was held that she was entitled to damages and the profit which but for the defendants act she might have made by letting seats.

2. Private nuisance

Private nuisance in contrast to public nuisance is an act affecting some particular individual or individuals as distinguished from the public at large.

Private nuisance is the using or authorising the use of one’s property, or if anything under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

Ingredients

  1. Unreasonable/ unlawful interference.
  2. With the use or enjoyment of land, or some right over or in connection with the land.
  3. Damage

Damage actual or presumed is an essential element for nuisance. Further, the damage must be substantial and not merely sentimental, speculative, trifling, fleeting or evanescent.

Private nuisances are of three kinds:

  1. nuisance by encroachment on a neighbour’s land
  2. nuisance by a direct physical injury to a neighbour’s land
  3. nuisance by interference with a neighbour’s quiet enjoyment of his land. Eg. by the wrongful escape of smoke.

The essence of private nuisance, the three cases namely interference with land or enjoyment of land is the case of class (1) or (2) the measure of damages is the diminution in the value in the case of class (3) loss of amenity value, if there be no diminution in market value. If the occupier of land suffers personal injury as a result of inhaling the smoke he may have a cause of action in negligence but he will have no cause of action in nuisance for his personal injury.

Private nuisance can be classified into two. A nuisance may be with respect to property or personal physical discomfort.

  1. With respect to injury to property

Any substantial or proper damage will be sufficient to bring an action in tort. In the case of damage to property, any sensible injury will be sufficient to support an action.

In Ram Raj Singh v. Babulal[7], the plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients.
The Court held that when it is established that sufficient quantity of dust from brick powdering mill set up near a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular to himself and that means he proved special damage. Thus, he was entitled to damages and injunction.

  1. With respect to physical discomfort

There is either excess enjoyment of the property as opposed to natural or ordinary enjoyment of the property. In case of physical discomfort there are two essential conditions to be fulfilled:

a. In excess of the natural and ordinary course of enjoyment of the property –
In order to be able to bring an action for nuisance to property, the person injured must have either a proprietary or possessory interest in the premises affected by the nuisance.

b. Materially interfering with the ordinary comfort of human existence
The discomfort should be such as an ordinary or average person in the locality and environment would not put up with or tolerate.

Following factors are material in deciding whether the discomfort is substantial:

  1. Degree of intensity
  2. Duration or frequency
  3. Locality
  4. Mode of use of the property

In Radhey Shiam v. Gur Prasad Sharma[8], it was held by the Allahabad High Court that a permanent injunction may be issued against the defendant if in a noisy locality there is a substantial addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.

The quantum of damages in private nuisance does not spend on the number of those enjoying the land in question it also follows that the only person entitled to sue for loss in amenity value as in the case of diminution of the land is the owner or the occupier with the right to exclusive possession. Thus, persons merely residing with the owners but having no right in the land.  Example: wife and children have no cause of action in nuisance.

In Boomer et al. v. Atlantic Cement Company[9], the plaintiffs claimed that the dirt, smoke, and vibrations coming from the defendant’s cement plant caused injury to their property. The property owners sought damages and an injunction to close the plant. The plant already employed the best pollution control technology.

The court addressed the economic consequence of the injunction and the effect of the nuisance. The court weighed the economic effect of closing the plant against the harm to the individual plaintiff’s land and concluded that the cement company could pay permanent damages in lieu of an injunction or closing. This case illustrates the limitations of private nuisance law to remedy pollution. Courts typically balance the equities and hardships. Private nuisances do not always outweigh the economic contribution of the polluting entity.

III. Defences to nuisance:

There are two valid defences for nuisance which are as follows,

  1. Prescription:

Prescription is a title acquired by use and time, and allowed by law as and when a man claims anything as he, his ancestors or they whose estate he have had possession for the prescribed period. The essence of prescription can be found in Section 26 of the Limitation Act and Section 15 of the Easements Act.  Also prescription is something of a kind of a special defence because if a nuisance has been openly and peacefully carried out without any interruption, in that the case the defence of prescription can be used.

The nuisance is considered to be legal as if it had been authorized in its commencement by a grant from the owner of the land when the period of twenty years has been expired.

  1. Statutory authority:

When a statute has authorised 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 statutory authority may be absolute or conditional.

When the statutory authority is absolute, the statute allows the act and it is unnecessary that the act must lead to nuisance or any other injury. When the statutory authority is conditional, the state allows the act to be done only if it can be done without any causation of nuisance or any form of injury.

In this case, there is a need for the exercise of due care and caution and due regard for private rights. Where undertakers act under a mandatory obligation (e.g. statutory obligation) whether or not there is a saving clause not exempting them from liability in nuisance, there is no liability in nuisance if what has been done is that which was expressly required to be done, or was reasonably incidental thereto.

There is a distinction in this context between statutory obligation or duty and statutory power which is permissive in nature. In case of the former, there is immunity from an action based on nuisance but in case of the latter, there is no immunity and power must be exercised in strict conformity with private rights; but even in the former case there will be no immunity in either of the cases when the action is taken is ultra vires to the statute.

In Vaughan v. Taff Vale Rly[10], 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 the case of a nuisance, it is no defence,

  1. That the plaintiff himself came to the nuisance;

In Village of Wilsonville v. SCA Services[11], the plaintiffs, a village and other governmental bodies, alleged that the defendant’s hazardous chemical landfill was a public nuisance. The plaintiffs sought to enjoin the operations of the landfill and require removal of toxic waste and contaminated soil. The court found that there was a substantial danger of groundwater contamination and explosions from chemical reactions. Although the damages were prospective, the nuisance already was present. Therefore, the court granted an injunction and ordered a site clean-up.

“Coming to a nuisance” is the phrase used to describe a defence that the complainant or plaintiff affected by the nuisance moved into the area where he complained about activity” had already been in existence. An example of “coming to a nuisance” occurs when someone moves onto the property near an airport or industrial complex and then complains of the nuisance that existed prior to his moving there.

Generally, the fact that an individual purchases property with the knowledge of the existence of a nuisance or that he came to the nuisance will not defeat his right to the abatement of the nuisance or recovery of damages. This cannot be taken as a defence.

  1. That the act causing nuisance is beneficial to the public[12]
  2. The place where the nuisance is created is the only place suitable for the purpose or
  3. That the defendant is merely making reasonable use of his property.
  4. It is no defence that the defendant’s operations would not alone amount to a nuisance. E.g. the other factories contribute to the smoke complained of.

IV. Remedies for Nuisance

The following remedies exist for nuisance. They are:

  1. Injunction-It may be a temporary injunction which is granted on an interim basis and that may be reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction. However, the granting of an injunction is again the discretion of the Court.
  1. Damages The damages offered to the aggrieved party could be nominal damages i.e. damages just to recognize that technically some harm has been caused to the plaintiff or statutory damages i.e. where the amount of damages is as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.
  2. Abatement It means the summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings. It is not a remedy which the law favours and is not usually advisable. E.g. – The plaintiff himself cuts off the branch of the tree of the defendant which hangs over his premises and causes a nuisance to him.

V. Conclusion

A nuisance arises whenever a person uses his property to cause material injury or annoyance to a reasonable neighbour. Odours, dust, smoke, other airborne pollutants, water pollutants and hazardous substances have all been held to be a nuisance. Under both private and public nuisance law, the plaintiff must prove that the defendant’s activity unreasonably interfered with the use or enjoyment of a protected interest and caused the plaintiff substantial harm.

The trier of fact determines whether an activity is unreasonable by balancing the social utility of the activities against the harm they create. Private nuisance actions to gain compensation and force polluters to discontinue interference with their physical private property as well as with their comfort and enjoyment of their property. Public nuisance law protects from interference a “right common to the general public.”

Plaintiffs may bring a public nuisance action if there are damages, interference, or inconvenience to the public. A state may assert a public nuisance action as an exercise of its police powers the typical situation. A private citizen may bring a public nuisance action only if he or she can show that he or she has suffered from harm that can be distinguished from that suffered by the members of the general public.

Analysis of a nuisance case in the IRAC method:

Dwyer v. Mansfiled (1946) 1 KB 437

Facts: During the scarcity of potatoes, long queues were made outside the defendant’s shop, who, having a license to sell fruits and vegetables, used to sell only 1kg of potato per ration card. The queues extended on the highway and also caused some obstruction to the neighbouring shops. The neighbouring shopkeepers bought an action for nuisance against the defendant.

Issues:

  1. Whether there is a serious and unlawful interference with the convenience of the public?
  2. Whether the action of the defendant is unreasonable?
  3. Whether the shopkeeper can be held liable for nuisance?

Rules:

 Essential elements of nuisance:

  1. There must be a wrongful act committed by the defendant.
  2. The wrongful act must result in damage or inconvenience or annoyance to the general public
  3. The inconvenience or discomfort should be substantial and merely not because of delicacy

Analysis:

The defendant shopkeeper carried out his business fairly and in a reasonable manner. In this case, the neighbouring shopkeepers did not suffer any substantial or actual damage to their business because of the lengthy queue. Here, the shopkeeper did not indulge himself in a wrongful act and queues in greengroceries are inevitable.

Moreover, that was a period of potato scarcity so, making the shopkeeper reasonable for the nuisance would be unjustifiable. Since nuisance is generally actionable on proof of actual damage, the shopkeeper cannot be made liable for the damage caused by the queue. Adding on to that, there is a lawful justification on the side of the defendant and this act actually did not continue for an unreasonable period of time. Also, the shopkeeper has a license to sell fruits and vegetables ie., he has a defence of statutory authority. Because of these reasons, the defendant cannot be held liable for nuisance.

The action of the defendant shopkeeper did not cause any substantial and reasonable harm to the plaintiff’s use of his land. The shopkeeper cannot be made responsible for the nuisance created by the queues at the time of scarcity.


[1] Justice G. P.Singh (ed.), Ratanlal & Dhirajlal on Law Of Tort,  (26th ed.2012) at p. 603

[2] John Salmond Salmond on Torts (16th ed, Sweet & Maxwell, London, 1973) at 52

[3] AIR 1978 Guj 13

[4] (1851) 2 Sim NS 133

[5] (1883) ILR 8 Bom 35.

[6] (1911) 1 KB 869

[7] AIR 1982 All. 285

[8] AIR 1978 All 86

[9] 1970 N.Y. LEXIS 1920; 26 N.Y.2d 219 (1970)

[10] (1860) 5 H.N. 679

[11] (1981), 86 Ill.2d 1

[12] Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch 287


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