The Tort of Nuisance

Introduction

The tort of nuisance refers to an unlawful interference with a person’s use or right to enjoyment of land. This interference maybe through heat, smoke, electricity, water etc.

Nuisance and Trespass are entirely different. Trespass is physical interference with the land of plaintiff through some object. On the other hand, in nuisance, physical interference is not necessary as it can be made through intangible objects such as water and smoke. For example, planting a tree on the land possessed by another person is trespass. While, when a person plants a tree on his own land and if its branches projects into the land of another person, then it will amount to nuisance. Also, trespass is actionable. While in nuisance, occurrence of some special damage has to be proven.

Types of Nuisance:

• Public Nuisance
• Private Nuisance

Public Nuisance

Public Nuisance is criminal in nature. It implies to interference with the right of the public collectively and is a punishable offence. Obstructing a public road by digging it is an example of public nuisance. Such obstructions may cause inconvenience to many people. Thus, in order to avoid multiple suits, public nuisance is punishable only under criminal law.

Private Nuisance

Private Nuisance is a civil wrong. In cases where a person suffers some special damage, other than from what has been inflicted on the public collectively, it amounts to private nuisance. The expression “special damage” in this context means damage caused to a party in contradiction to the public at large.¹ For example, digging a trench in a road used by public will cause interference to the public collectively. But if a person falls in that trench, then he will suffer more damage than the inconvenience suffered by the public and he can sue in tort.

In Dr. Ram Raj Singh v. Babulal², the defendant created a brick grinding machine adjacent to the premises of the plaintiff. The plaintiff was a medical practitioner. The red dust created by the brick griding machine polluted the surroundings and entered the consulting chamber of the plaintiff, causing physical inconvenience to him and his patients and subsequently created a red coating on clothes. Occurrence of special damages to the plaintiff was proven and the defendant was restrained from using his brick grinding machine there.

Essential elements for the tort of nuisance

• Unreasonable interference
• Interference with enjoyment of land
• Damage

Unreasonable Interference

Every interference cannot be accounted as nuisance. For the tort of nuisance, interference must be unreasonable. Everyone should respect the rights of others and must put up with some noise or smell. For example, if someone is listening to music at a high volume in his house, people living in his neighbourhood cannot sue him for it. 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.³

In Ushaben v. Bhagya Laxmi Chitra Mandir⁴, suit was filed against the defendant for restraining them from exhibiting film “Jai Santoshi Maa”. It was contended that exhibition of the film was a nuisance because religious sentiments of the plaintiff were hurt. It was held that hurt of religious sentiments was not a nuisance and that the plaintiff has choice to not to watch the movie again.

Interference with enjoyment of land:

• Injury to the property
• Injury to health of occupants of property

Injury to the property:

Illegitimate interference of with use of property through tangible or intangible object that causes any form of damage to the property, results to nuisance.

In St. Helen’s Smelting Co. v. Tipping⁵, fumes from the company of defendant damaged trees on the property of plaintiff. It was held that the defendant was liable as the damage caused was to the property.

Injury to comfort or health:

Actual inconvenience with the comfort in the usage of the property is accounted as nuisance. Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of nuisance but the test is how a man of ordinary prudence residing in the same area would take it. In Ball v. Ray⁶, discomfort to neighbours during night by the noise of horses which was converted into a stable was held as nuisance.

Damage

In private nuisance, whether the harm is inflicted on the property or to the comfort of occupants of the property, occurrence of some special damage has to be proven. Damage is one of the most essential elements of private nuisance.

Defences

Prescriptive right to commit nuisance:

A right to perform an act, which would be a nuisance can be acquired if a person has continued with it on someone’s else property for 20 or more years and hereby, he may continue doing it in the future. On the expiration of the period of 20 years, nuisance becomes legalised as if it has been permitted by the owner of the property.

Statutory authority

If nuisance is committed under the authority of a statue, then there is no liability for it. Thus, a railway company will not be liable if spark from engine causes damage to adjacent property.

Conclusion

The concept of nuisance has its origin from daily life of a man. It was mainly created to stop unreasonable interferences to a property owner. Laws regarding nuisance have been widened through interpretations and judgements.

REFERENCES

• 1. Dr. Ram Raj Singh v. Babulal, AIR 1982 All 285
• 2. AIR 1982 All 285
• 3. Sedleigh Denflied v. O’Callaghan, (1940) A.C. 880, 903, per Lord Wright.
• 4. AIR 1978 Guj 13
• 5. (1865) 11 H.L. Cas 642: Halsey v. Esso Petroleum Ltd., (1961) 2 All E.R. 145; (1961) 1 W.L.R. 683; Wood v. Conway Corporation, (1914) 2 Ch. 47.
• 6. (1873) LR 8 Ch D 467  

This article is authored by Nishtha Singh, student at Amity University, Lucknow