Lecture Note 12: Nuisance
The law relating to nuisance protects interest in peaceful and beneficial enjoyment of the properties of a person. The word nuisance has been derived from the French word nuire which means to hurt, something noxious or offensive. It is not possible to define nuisance accurately because in order to judge whether nuisance has taken place or not the political, social and economic situations prevailing in the country as well as the subjective standard of the persons affected will have to be considered from an objective standpoint.
Essential Elements: In order to found an action for nuisance the following elements must be established:
1. The plaintiff must have right to use and enjoyment of land.
2. There must be interference with such use and enjoyment.
3. The interference must be unreasonable.
4. Damage to the plaintiff.
1. Right to use or enjoyment of land:
In order to found an action in nuisance, it is necessary that, the plaintiff must have right to use and enjoyment of land. However, a mere right to use or enjoyment without any proprietary interest may not be sufficient; i.e., a licensee without possession, such as lodger or the guest of an occupier cannot sue. As nuisance is an interference with the use or enjoyment of land, an owner or reversionary (someone having a vested interest to a future estate) who is not in occupation of it cannot sue for nuisance without joining the occupier unless the nuisance falls within any of the following exceptions:
i. Where nuisance is such as to cause actual damage to the property, i.e., vibrations of machinery causing cracks in the house.
ii. Where the nuisance is of permanent character and may reduce the value of reversion.
iii. Where if nuisance is allowed to continue, the person causing it, may acquire a prescriptive right to continue it, i.e., throwing of filthy water on plaintiff's land.
2. There must be interference with the use or enjoyment of land:
The plaintiff must establish that there was substantial interference with his right to use and enjoyment of land. The interference may take any of the following forms:
i. Encroachments:
Where a person builds a house the cornice of which projects over the neighbour's land and causes rainwater to flow thereon or where branches of trees hang over the neighbour's land or when roots of trees penetrate the land of the neighbour, an action in nuisance not in trespass will lie. It is immaterial whether trees are planted or self-grown.
ii. Causing physical damage to land or something upon it:
Nuisance may also be committed by causing damage to the land of the neighbour or anything erected or growing upon it. For instance, working of mines or digging a trench on one's own land in such a manner as to cause the surface of other's land to subside, setting up of machines which by vibrations cause damage to the neighbour's premises or emission of noxious fumes which cause damage to plants on another's land.
iii. Causing inconvenience, discomfort or annoyance:
Nuisance may also be such as causes neither damage nor encroachment upon the land of the other but makes the life inconvenient or discomfortable, i.e., causing of smokes, noxious flames, smell, noise, vibration may amount to nuisance.
3. Interference must be unreasonable:
Any kind of interference cannot be termed as nuisance. The reasonableness or unreasonableness of interference will depend upon the facts and circumstances of each case.
A person may be extra sensitive. He may be annoyed by slight noise but the law of nuisance does not take into account interferences which are inevitable and which cannot be categorised as unreasonable. When one uses his radio there is noise and interference with the enjoyment of his neighbour but if the volume is not loud, then such interference is not unreasonable and the neighbour cannot recover damages for nuisance.
The following forms of nuisance have generally been subject of litigation:
i. Noise and vibration:
Ordinarily some noise and vibrations are inevitable in cases of factories employing heavy machines and a neighbour has to put up with it but where the noise was excessive and vibrations produced by the machines cracked the house of the plaintiff it was held that the defendants were liable.
ii. Pollution of Air:
If discharge of gases, vapour or smoke in the air makes living substantially inconvenient, an action in nuisance is maintainable. In B. Venkatappa v. B. Lovis (1986) chimney holes were projected towards the plaintiff’s house by the defendant. The Court issued mandatory injunction directing the defendant to close the holes of the chimney towards the plaintiff’s house because smoke emanating through holes would constitute nuisance.
iii. Pollution of water:
Pollution of water of a stream or defined underground channel is a nuisance. Pollution may take various forms, i.e., raising its temperature, changing soft water to hard or making it dirty.
Thus, a local authority discharging crude sewage into a stream could be restrained by an injunction. When suit is filed for pollution it would not be a defence that pollution is being done by others also. Even where there is a prescriptive right to pollute, there can be no right to increase the pollution.
iv. Removal of support of neighbour's land:
An owner of land may built upon it or dig it even to the very extremity of his land without giving any cause of action to his neighbour but where neighbour's land is burdened with boundary wall or building the position is different, the neighbour can take an action for nuisance. Thus, in Bauribandhupatra v. Sagar Malla (1966) it has been held that, where as a result of the digging of their own land by the defendants just by the side of the plaintiff's boundary wall a portion of the boundary wall had fallen down and his building also cracked, it was held that the plaintiff could succeed in an action for nuisance if established that the additional burden thrown on his land as a result of construction of boundary wall of building and it has been in existence for more than 20 years.
v. Obstruction to light and air:
Right to light through a particular aperture in a house or building can be acquired by prescription as an easement under the Limitation Act, 1908 and right to air is co-extensive with right to light. Any interference with such rights may amount to nuisance if it causes substantial discomfort and renders the house unfit for ordinary habitation or business. Where it does not cause such discomfort, the remedy will not be granted for an action in nuisance but under the Limitation Act.
vi. Obstruction of public view or access to premises:
In Campbell v. Paddington Borough Council (1911) the plaintiff was the owner of a house.
There was an open view of certain main thoroughfare from the windows of the plaintiff’s house. One 'A' agreed to take the house on rent to see the procession of Edward the Seventh.
The defendant constructed a stand which obstructed the view. The defendant corporation was held liable for nuisance. Similarly, if several persons park their vehicles in front of the shop of a person this will obstruct the access to the shop and its view. It will, therefore, be nuisance.
vii. Nuisance on highways:
Nuisance on highways may take the following forms:
Obstruction on the highway: A public nuisance may arise from obstruction of highways. The obstruction may take various forms such as creating barriers, leaving animals or vehicles or other things. Obstruction to highway may also be caused by crowd of people in front of a cinema hall or a shop or in a procession or in a public meeting. Such kind of obstruction must be sensible interference with the right to use high way to amount to a nuisance.
Creation of Danger on highway: Danger to a highway may be created in the following several ways:
a) Non-repair of road.
b) Dangerous structures and trees near the road.
c) Other ways of creating danger to highways.
d) Picketing on highway.
4. Damage:
Nuisance is not actionable per se. Some actual damage is essential to found an action for nuisance. As already noted, any sensible injury to property will be sufficient to support an action. In St. Helen's Smelting Company v. Tipping (1865) the plaintiff had bought an estate in a neighbourhood where manufacturing works were carried on. Among others there were works of a copper smelting company. The vapour from these works proved to be injurious to plants on the plaintiff’s land. It was held to be nuisance.
A. Duration of nuisance:
Nuisance is commonly understood as a continued wrong. A casual or temporary inconvenience is ordinarily not regarded as nuisance, i.e., noise, because of repairs in a building. It has been said that it takes more than one puff of smoke to create a nuisance by noxious vapour and more than one bang of a big drum to create a nuisance by noise. Thus in Stone v. Bolton (1951) the plaintiff who was standing on the highway was injured by a cricket ball struck from the defendants' field. It was held that, an isolated act of hitting a cricket ball into the road cannot be regarded as nuisance. A nuisance must be a state of affairs however temporary, and not merely an isolated happening. But there is sufficient authority to support that, under certain circumstances a temporary inconvenience or a single happening may amount to nuisance. A single discharge of water, gas or fire was held to be nuisance because of danger involved. In judging whether a particular act or omission amounts to nuisance, the law takes into account the object duration and the danger involved.
B. Public and private nuisances:
Public and private nuisances may be differentiated as follows:
a) A public nuisance is an act affecting public at large, that is, it involves an injury, danger or annoyance to public generally or to a considerable portion of it. A private nuisance, on the other hand, is an injury to the right of an individual to the comfortable use and enjoyment of his own property. Wrongful acts or omissions which interfere with the health, safety, comfort or convenience of the general public or which tend to degrade public morals have been held to be public nuisance. Acts likely to spread infectious diseases, fouling of water, selling of adulterated food, pollution of air by noxious fumes, negligent handling of poisons, fire, animals, and explosives are all dangers to safety and health.
b) Public nuisance is an offence under the Penal Code and does not create a civil cause of action whereas private nuisance is actionable as tort.
c) Private nuisance can be legalised by prescription but public nuisance cannot be legalised by any length of time.
d) Remedy for private nuisance is a civil action for damages but remedy for public nuisance is criminal prosecution.
e) A private nuisance can be abated but theoretically there is no right of abatement (removal of the nuisance) in cases of public nuisance. However, a public nuisance
becomes a private nuisance to a person who suffers some special or particular damage thereby and such person can abate the public nuisance to the extent to which it specially prevents him in exercise of his legal right.
C. Defences
a) Grant: If the nuisance is under the terms of grant the plaintiff will have no remedy.
The plaintiff cannot be allowed to sue where he gave the licence to commit the nuisance. In such cases the principle of volenti non fit injuria will apply.
b) Authority of Statute: An act which might be otherwise private nuisance, will cease to be so for statutory authority. If smoke sparks and vibrations would have been nuisance but for statutory authority, it will be not so considered. Where however authority is only permissive but not mandatory, the defendant must exercise it having due regard for interests of others.
c) Prescription: Under certain circumstances right to commit a private nuisance may be acquired by prescription. The right accrues if it has been peaceably and openly enjoyed as an easement for twenty years without interruption.
D. Remedies for Nuisance:
For nuisance there are three main remedies. These are as follows:
a. Abatement.
b. Damages.
c. Injunction.
a) Abatement
It has already been considered under extra judicial remedies. Person suffering from nuisance can himself remove the nuisance without recourse to judicial proceedings, i.e., where nuisance is caused by overhanging branches penetrating roots of trees he can abate such nuisance by cutting such branches or roots but he should not appropriate them for himself.
Another condition for availing this remedy is that, the removal of nuisance must be peaceable and without danger to life. Where for removal it is necessary to enter the land of another person or where the nuisance is a dwelling house, notice to abate the nuisance may be given before enter into the land unless it is unsafe to wait.
b) Damages
Remedy by way of damages is available in all torts and nuisance is not an exception to it. The measure of damages where nuisance affects the value of property, is the diminution of value of the property because of the nuisance.
Continuing Nuisance: Where the nuisance is a continuing one a fresh cause of action arises everyday so long as it continues and damages for further damage may be claimed.
c) Injunction
Where the injury is continuous and where it is of such a character that adequate compensation in terms of money is not possible, the injunction is the proper remedy. But where the injury to plaintiff's right is small and can be adequately compensated in terms of money or where to grant injunction would be unduly oppressive to the defendant, the court may award damages in lieu of injunction.
