Kinds of Nuisance
Nuisance is of two kinds: Public or common nuisance and Private nuisance. Public nuisance is a crime (Sec. 268, IPC) whereas private nuisance is a tort or civil wrong.
A public nuisance can be defined as an unreasonable interference with a right common to general public. Obstructing a public way by digging a trench, carrying on trades which cause offensive smells or intolerable noises, etc. are examples of public nuisance, Thus, the acts constituting public nuisance are all of them unlawful acts; those, which constitute private nuisance, are not necessarily or usually unlawful. 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 –
(i) He must show special and particular injury to himself beyond that which is suffered by the rest of public.
(ii) Such injury must be direct, and not a mere consequential injury; as, where one way is obstructed, but another is left open.
(iii) The injury must be shown to be of a substantial character.
In Dr. Ram Raj Singh v Babulal (AIR 1982 All 285), the defendant erected a brick grinding machine adjoining the premises of the plaintiff, who was a doctor. The dust generated by the machine entered the plaintiff’s chamber and caused physical inconvenience to him and his patients. It was held that special damage to the plaintiff had been proved.
In Campbell v Paddington Corp. (1911) 1 K.B. 869, an uninterrupted view of the funeral procession of King Edward VIII could be had from the window of the plaintiff’s building. The plaintiff accepted certain payments from certain persons and permitted them to occupy seats in her building. Before the date of the said procession, the defendant corporation constructed a stand on the highway in front of the plaintiff’s building, which obstructed the view. Held, the plaintiff was entitled to compensation.
Private Nuisance (Tort of Nuisance)
To constitute the tort of nuisance the following essentials are required to be proved –
(i) Unreasonable interference-
Interference may cause damage to the plaintiff’s property or may cause personal discomfort to him in the enjoyment of the property. Every interference is not a nuisance. Thus a person having a house by the roadside must put up with such inconvenience, which is incidental to the traffic. Running a flour mill in a residential area has been held to be nuisance (Radhey Shyam v Gw.Prasad AIR. 1978 All 86).
In Shanmughavel Chettiar v. Sri Ramkumar Ginning Firm/ the plaintiff firm (respondent) constructed a building to locate Ginning Factory there, after obtaining licence therefor from the Panchayat Union. The plaintiff had invested large funds and had also made elaborate arrangement to start the Ginning factory Thereafter, the defendants (appellants) were also granted a licence to start a brick kiln on the adjacent land. The plaintiff filed a suit for injunction restraining the defendants from starting brick kiln there, contending that the fumes from the proposed brick kiln would spoil the quality of cotton in the Ginning Factory and that during the windy season, sparks from the brick kiln were likely to cause outbreak of fire in the cotton godown and the factory. It was held that the erection of the proposed brick kiln at that place would amount to actionable nuisance and, therefore, the plaintiff had a right to resist the erection of the brick kiln there. It was also held that according of the permission by the Municipality to the defendants to start the brick kiln could not prevent the plaintiff from obtaining an injunction for the abatement of the likely nuisance.
It may be noted that in the above case, a right to prevent the occurrence of nuisance was recognized, before the nuisance was actually caused.
In Ushaben v. Bhagya Laxmi Chitra Mandir, A.I.R. 1978 Guj. 13 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 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. It was held that hurt to religious feelings was not an actionable wrong. Moreover, the plaintiffs were free not to see the movie again. The balance of convenience was considered to be in favour of the defendants and as such, there was no nuisance.
An act which is otherwise reasonable does not become unreasonable and actionable when the damage, even though substantial, is caused solely due to sensitiveness of the plaintiff or the use to which he puts his property.
In Sadleigh v O’ Callageham (1940) AC 880, held that the test of reasonableness is according to the ordinary usages of mankind living in society. An act, which is otherwise reasonable, doesn’t become unreasonable and actionable due to the sensitiveness of the plaintiff. If certain kind of traffic is no nuisance for a healthy mark it will not entitle a sick men to bring an action if he suffers thereby, even though the damage is substantial.
Similarly, in Health v. Mayor of Brighton,(1908) 98 L.T. 718 : 24 T.L.R. 414. the court refused to grant injunction in favour of the incumbent and trustees of a Brighton Church to restrain “a Buzzing noise” from the defendant’s power-station.. It was found in this case that the noise did not cause annoyance to any other person but the incumbent, nor was the noise such as could distract the attention of ordinary persons attending the church.
(ii) Interference with the use or enjoyment of land-
Interference may cause either: (i) injury to the property itself (for example, by allowing the branches of a 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) or (ii) injury to comfort or health of occupants of certain property.
In Noble v Harrison (1926) 2 KB 332, however, held that the fact that the branch of tree was overhanging on the highway was not nuisance, nor was the nuisance created by its fall as the defendant neither knew or could have known that the branch would break and fall. However, projections on private land constitute nuisance, as there is an interference with enjoyment of one\’s property. It is to be noted that only substantial interference with comfort and convenience in using the premises is actionable as a nuisance. A mere trifling or fanciful inconvenience is not enough. Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of nuisance but the test is how an average man residing in the same area takes it. Disturbances to neighbours throughout the night by the noises of horses in a building converted into a stable were nuisance (Ball v Ray). Similarly, attraction of large and noisy crowd outside a club kept open till 3 a.m. was held to be nuisance (Bellamy v Wells).
Under the tort of nuisance, a person cannot increase the liabilities of his neighbour by applying his property to special uses, whether for business or pleasure. Thus, a person carrying on an exceptionally delicate trade cannot complain if an injury is caused by his neighbour doing something lawful on his property (Robinson v Kilvert).
The remedies for private nuisance are (i) Damages (ii) Abatement and (iii) Injunctions.
Damages in Nuisance
In an action for nuisance, actual damage is required to be proved. In the case of public nuisance, the plaintiff can bring an action in tort only when he proves a special damage to him. In private nuisance, although damage is one of the essentials, the law will often presume it.
Defences to Nuisance
A number of defences have been pleaded in an action for nuisance. Some of the defences have been recognized by the courts as valid defences and some others have been rejected. Both the valid or effectual defences as well as ineffectual defences have been discussed below.
(i) Prescription- A right to do an act, which would otherwise be a private nuisance, may be acquired by prescription (i.e. by elapse of certain number of years). A right to commit a private nuisance may be acquired as an easement if the same has been peaceably and openly enjoyed as an easement and of right for a period of 20 years.
(ii) Statutory authority- An act done under the authority of a statute is a complete defence.
However, there are certain ineffectual defences to nuisance:
(i) Nuisance due to act of others- Sometimes the act of two or more persons, acting independently of each other, may constitute a nuisance although the act of any one of them alone would not be so.
(ii) Public good- It is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general, otherwise, the public utility undertaking could be held liable for the unlawful interference with the rights of individuals.
(iii) Reasonable care- Use of reasonable care to prevent nuisance is generally no defence.
(iv) Plaintiff coming to nuisance- It is no defence that the plaintiff himself came to the place of nuisance. A person cannot be expected to refrain from buying a land on which nuisance already exists. Even in a noisy locality, if there is a substantial addition to the noise by introduction of some machine, etc. at defendant’s premises which material affects the physical comforts of the occupants of the plaintiff’s house, then also noise will amount to actionable nuisance (Dhanna Lal v Thakur Chittar Singh AIR 1959 M.P. 240).
Abatement of Nuisance
An occupier of land is permitted to abate, i.e. to terminate by his own act, nuisance which is affecting his land. For example, he may cut the branches (overhanging) or the roots of the neighbour’s trees which have escaped to his land. Generally before abatement is made, a ‘notice’ to the other party is required unless the nuisance constitute a danger to the life or property. When the abatement is possible without going on the wrongdoer’s land, the same may be done without notice.
It is a remedy which is not favoured by the law as it may lead to breach of the peace. The party abating a nuisance must be careful not to interfere with the property of the wrong-doer (thus the abater should not appropriate to himself the branches of the overhanging tree or even the fruits found on them) in excess of what is necessary to abate the nuisance, and if there are alternative methods of abatement the least injurious method must be adopted. A private individual cannot abate a public nuisance, unless it causes him some special and peculiar harm; the remedy lies in the writ.