NUISANCE

Nuisance as a tort means an unlawful interference with a

person's use or enjoyment of land, or some right over, or
in connection with it. (Winfield). (Acts interfering with
the comfort, health or safety are the examples of it. The
interference may be made in different ways, e.g. noise,
vibrations, heat, smoke, smell, fumes, water, gas,
electricity, excavations of disease producing germs.

Nuisance should be distinguished from trespass, which is

also a wrong against the possession of property. If
interference is direct, the wrong is trespass, but if it is
consequential, it amounts to nuisance. Planting a tree on
another's land is trespass. But when a person plants a tree
over his own land but the roots or branches project into
or over the land or person, that is nuisance. Moreover, in
trespass, interference is through some material or
tangible object. If the object is not material or tangible
e.g. vibrations, noise, smell, electricity or smoke, the
interference amounts to nuisance. In trespass there is
interference with possession of land whereas in nuisance,
there is interference with the use or enjoyment of land.
Apart from that trespass is actionable per se whereas in
nuisance special damage has got to be proved,

Nuisance is of two kinds : public or common nuisance

and private nuisance.
Public nuisance is a crime whereas a private nuisance is
a civil wrong (Public nuisance is interference with the
rights of the public in general and is punishable as an
offence. Obstructing a public way by digging a trench. or
constructing structures on it are examples of public
nuisance) Although the obstruction may cause
inconvenience to many persons, there cannot be
hundreds of civil actions for the same wrong In certain
cases, when any (person suffers some special or
particular damage, different from what is inflicted on
public as a whole, right of civil action is available to the
person so injured, What is otherwise a public nuisance
becomes a private nuisance so far as the person suffering
special damage is concerned. For example. digging a
trench on a public highway may cause inconvenience to
public at large, no member of the public, who is thus
obstructed or has to take a diversion along with others,
can sue under civil law. But if any one of them suffers
more damage than suffered by the public at large, eg is
severely injured by falling into the trench, he can sue in
tort. In order to sustain a civil action in respect of a public
nuisance, proof of special and particular damage is
essential.

Essentials of Nuisance :

1. Unreasonable interference - Interference may cause

damage to the plaintiff's property or may cause personal
discomfort to the plaintiff in the enjoyment of the
property. Every interference is not a nuisance. Every
person must put up with some noise, some vibration,
some smell or inconvenience, etc, so that other members
of the society can enjoy their own rights. A person having
a house by the roadside must put up with such
inconvenience which is incidental to the traffic on the
road So long as the interference is not unreasonable, no
action can be brought

Running a flour mill in a residential area has been held

to be nuisance. (Radhey Shyam v. Gur Prasad) Similarly,
when the starting of a brick kiln at a certain place is likely
to spoil the quality of cotton in a ginning factory and in
the windy season sparks from the brick kila are likely to
cause fire in the cotton godown and the factory, that is a
valid ground for injunction against the starting of the
brick kiln there injunction would be issued even though
the local authority has given i licence for the starting of
the brick kiln. (S. Chettiar v. Sri Ramkum Ginning Firm).

But in Ushaben v. Bhagya Laxmi Chitra Mandir, it has

been held that exhibition of the film "Jai Santoshi Maa"
is not nuisance merely because the plaintiff alleges that
his religious feelings are hurt w Goddesses Saraswati,
Laxmi and Parvati are depicted as jealous and a ridiculed.
He is free not to see the movie again. The

What is otherwise reasonable does not become

unreasonable and actionable when the damage caused is
solely due to the sensitiveness of the plaintiff. If a certain
kind of traffic is no nuisance for a healthy man, it will
not entitle a sick man to bring an action if he suffers
thereby even though the damage be substantial.
Similarly, a person cannot increase the liabilities of his
neighbours by carrying on an exceptionally delicate trade
(Robinson v. Kilvert and Heath v. Mayor of Brighton).

Malice-Does an act, otherwise lawful, become a

nuisance if the act of the defendant has been actuated by
an evil motive to annoy the plaintiff?

In Mayor of Bradford v. Pickles, the House of Lords held

that if an act is otherwise lawful, it does not become
unlawful merely because the same has been done with an
evil motive. However, if the act of the defendant, which
is done with an evil motive, becomes an unreasonable
interference, it is actionable. A person has a right to make
a reasonable use of his own property but if the use of his
property causes substantial discomfort to others, it ceases
to be reasonable.

In Christie v. Davey, the defendant, being irritated by

considerable amount of music lessons by the plaintiff, a
music teacher, living in the adjoining house, maliciously
caused discomfort to the plaintiff by hammering against
the party wall, beating of trays, whistling and shrieking.
The court granted an injunction against the defendant.

In Hollywood Silver Fox Farm Ltd. v. Emmett, the

plaintiffs had the business of breeding silver foxes on
their land. The vixen are extremely nervous during the
breeding season. The defendant maliciously caused guns
to be fired on his own land but as near as possible to the
breeding pens with a view to causing damage to the
plaintiff by interfering with the breeding vixen. The
plaintiff was entitled to an injunction and compensation.

2. Interference with the use or enjoyment of land-

Interference may cause either injury to the property itself
or injury to comfort or health of occupants of certain
property.

An unauthorised interference with the property of

another person through some object, tangible or
intangible, which causes damage to the property is
actionable as nuisance. It may be, for example, by
allowing the branches of tree to overhang on the land of
another person, or the escape of the roots of a tree, water,
gas smoke or fumes, etc. on the neighbour's land or even
by vibrations. Nuisance is different from trespass
inasmuch as in trespass the interference with the property
is direct through some material or tangible object,
whereas in the case of nuisance the interference may not
be direct or through some tangible object. Substantial
interference with comfort and convenience in using the
premises is also actionable as a nuisance. A mere trifling
or fanciful inconvenience is, however, not enough. The
standard of comfort m convenience in using the premises
varies from time to time and p plaintiff is not the test of
nuisance but the test is how an average residing in the
same area would take it. Disturbance of neighbours
throughout the night by the noises of horses in a building
converted into a stable was a nuisance. Similarly,
attraction of large and noisy crowd outside a club kept
open till 2 a.m., is also an instance of nuisance, Smoke
place Inconvenience and discomfort from the point of
view of noise and offensive vapour may constitute a
nuisance even though they are not injurious to health.

3. Damage: Unlike trespass, which is actionable per

actual damage is required to be proved in an action for
nuisance. Even in the case of public nuisance, the
plaintiff can claim compensation if he can show a special
damage to himself.

Effectual Defences

1. Prescription. A right to do an act, which would

otherwise be a private nuisance may be acquired by
prescription. A right to commit a private nuisance may
be acquired as an easement if the same has ha peaceably
and openly enjoyed as an easement and of right, without
interruption and for a period of 20 years. On the
expiration of this prod of 20 years, the nuisance becomes
legalised ab initio if it has been authorised by a grant of
the owner of the serviant land from the beginning The
period of 20 years cannot commence to run until the act
complained of begins to be a nuisance. (Sturges v.
Bridgman).
2. Statutory Authority-An act done under the authority of
a statute is a complete defence. If nuisance is necessarily
incidental to what has been authorised by a statute, there
is no liability for that under the law of torts. Thus, a
railway company authorised to run railway trains on a
track is not liable if, in spite of due care, the sparks from
the engine set fire to the adjoining property, or the value
of the adjoining property is depreciated by the noise,
vibrations and smoke by the running of trains.

Ineffectual Defences 1. Nuisance due to act of others.

Sometimes, the act of two more persons, acting
independently of each other, may constitute a nuisance
although the act of any one of them alone would not be
so. An action can be brought against any one of them and
it is no defence that the act of the defendant alone would
not be a nuisance.

2. Public Good. It is no defence to say what is a nuisance

to particular plaintiff is beneficial to the public in
general, otherwise no public utility undertaking could be
held liable for the unlawful interference with the rights
of individuals.
In Adams v. Ursell, an injunction was issued preventing
the continuance of a fried-fish shop in the residential part
of street although, as alleged, the injunction would mean
a great hardship s the defendant and his poor customers.

3. Reasonable Care.-Use of reasonable care to prevent

nuisance is generally no defence. If an operation cannot
by any care and skill, b prevented from causing a
nuisance, it cannot lawfully be undertaken at all except
with the consent of those injured by it or by the authority
of statute.

4. Plaintiff coming to nuisance. It is no defence that the

plaintiff himself came to the place of nuisance. A person
cannot be expected is refrain from buying a land on
which a nuisance already exists and the plaintiff can
recover even if nuisance has been going on long before
he went to that place.