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. Acts interfering with comfort, health or safety are the examples of it. The interference may be any way, e.g., noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs.
The term ‘nuisance’ has exhaustive and diverse definitions. The word ‘nuisance’ is derived from the French word noire, to do hurt, or to annoy. In Durga Prasad v State (AIR 1962 Raj 92), it was observed that ‘nuisance’ ordinarily means anything, which annoys, hurts or that which is offensive.
Nuisance may be caused by negligence, but it is no branch of negligence and it is no defence that all reasonable care to prevent it is taken. Nuisance is generally a continuing wrong (state of affairs). It must not be momentary though it could be temporary. A constant noise, smell or vibration is a nuisance and ordinarily an isolated act of escape of noise cannot be considered to be a nuisance e.g., an isolated act of hitting a cricket ball on to a road. However, in Dollman v Hillman Ltd. (1941) 1 All ER 355, the defendant was held liable for the isolated act, when the plaintiff slipped on a piece of fat lying outside the defendant’s butcher’s shop, in nuisance and negligence.
Nuisance should be distinguished from trespass. Trespass is:
(i) a direct physical interference,
(ii) with the plaintiff’s possession of land,
(iii) through some materials or tangible object.
Both nuisance and trespass are similar in so far as in either case the plaintiff has to show his possession of land. The two may even coincide, some kinds of nuisance being also continuing trespasses. The points of distinction between the two are as follows:
If interference is direct, the wrong is trespass, 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 and the roots or branches project into or over the land of another person that is nuisance. To throw stones upon one’s neighbour’s premises is a wrong of trespass; to allow a stone from a ruinous chimney to fall upon those premises is the wrong of nuisance.
Trespass is interference with a person’s possession of land. In nuisance, there is interference with a person’s use or enjoyment of land. Such interference with the use or enjoyment could be there without any interference with the possession. For example, a person by creating offensive smell, or noise on his own land could cause nuisance to his neighbour.
Moreover, in trespass, interference is always through some material or tangible objects. Nuisance can be committed through the medium of intangible objects also like vibrations, gas, noise, smell, electricity or smoke.
Apart from that, a trespass is actionable per se, but in an action for nuisance, special damage has got to be proved.