What is Nuisance. distinguish between private and public nuisance in detail.
Defences of nuisance
Remedies of nuisance
Introduction:
1. 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.”
2. 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.
3. Various jurists have defined this concept which is as follows :
(i) According to Blackstone nuisance is something that “worketh hurt, inconvenience or
damage.
(ii) 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.
4. 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.
Kinds of Nuisance:
Nuisance can be of two types:
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, etc.
In the case of Ram Raj Singh v. Babulal 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
(i) There must be an unlawful or unreasonable interference.
(ii) Such unlawful interference must be with the enjoyment or use of the land or some right or
in connection with the land.
(iii)There must be some damage suffered by the plaintiff.
Basis Public Nuisance Private Nuisance
An act or omission that causes harm, Unreasonable interference with
Definition inconvenience, or obstruction to the an individual’s use or enjoyment
public or a large group of people. of their land or property.
Loud music, bad odors, water
Air or water pollution, blocking public
leakage, overgrown tree
Examples roads, illegal waste dumping,
branches encroaching on
hazardous construction.
neighboring property.
A public authority (e.g., government
body). An individual can sue only if A private individual who owns or
Plaintiff
they suffer special damage beyond occupies the affected land.
the general public.
Affects the public at large by Affects one or a few individuals,
Nature of
interfering with public health, safety, usually neighbors or adjacent
Harm
or convenience. property owners.
No legal interest needed unless
Legal Interest Plaintiff must have ownership or
claiming special damage beyond
Required tenancy of the affected property.
public harm.
Extent of Widespread, affecting a large group or Limited, impacting only specific
Damage entire community. individuals.
Remedies 1. Abatement – Government action to 1. Injunction – Court order to
Basis Public Nuisance Private Nuisance
remove the nuisance.
stop or reduce the nuisance.
2. Fines/Penalties – Offender may
2. Compensatory damages –
face legal consequences.
Financial compensation for harm
3. Injunctions – Court orders to stop
suffered.
the nuisance.
3. Abatement order – Legal
4. Monetary damages – Only if special
directive to remove the nuisance.
damage is proven.
A civil wrong under tort law,
Criminal vs. Can lead to both civil and criminal
allowing affected individuals to
Civil Liability liability, as it affects society.
seek damages.
No criminal liability –
1. Criminal penalties like fines or
punishment involves monetary
Punishment imprisonment.
compensation or court orders to
2. Civil remedies such as injunctions.
stop the nuisance.
Who Can Take Government bodies or an individual The affected individual, usually a
Action? proving special damage. property owner or tenant.
1. Prescriptive Right – If the
1. Statutory Authority – If the act is nuisance has existed for 20+
Defenses legally permitted. years.
Available 2. Public Benefit – If it serves a 2. Plaintiff’s Sensitivity – If the
greater good. complaint is due to personal
intolerance.
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. This privilege must
be exercised within a reasonable time and usually requires notice to the defendant and his
failure to act. Reasonable force may be used to employ the abatement, and the plaintiff will be
liable if his actions go beyond reasonable measures.
Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which overtime
outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree
which is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land
without his permission, and chops off the entire tree which then falls on the land of Beck, then
Ace shall be in the wrong here as his action taken would be beyond reasonableness.
Defences:
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 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 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 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.
