A defendant in an action for nuisance may take up the following defences:
(1) Grant: When the defendant had right under the terms of a contract to do an act of nuisance, no action can be brought against him.
(2) Prescription: A right to commit a private nuisance may be acquired as an easement by prescription. So a person may by 20 year’s user gain right to pour foul water into another’s stream. It must be borne in mind that it is not sufficient for the defendant to prove that the act which now causes the nuisance has been continued for 20 years. It should be proved that it has been a nuisance for the period of 20 years. Thus in Sturges v. Bridgman the defendant has been using a heavy machinery in his business as a confectioner for more than 20 years and made certain noise in his land. the plaintiff build his consulting room at the end of his garden hear to the source of the noise a short time before the action. The defendant pleaded prescription but it was untenable because nuisance began only when the consulting room w untenable because built and not before, although he had used the machine for 20 years.
(3) Statutory Authority: When a statute specially authorises a certain act to be done which would otherwise be actionable, no action will lie. When certain acts are so authorised by statutes its necessary consequences are also authorised. It may be questioned now as to what are the necessary consequences of an act, and the answer to it is not far to seek. All those consequences which cannot be avoided by the use of due care and skill care the necessary consequences. Thus we see that all the consequences which cannot be helped do enjoy, the statutory indemnify. But the consequences that can be avoided can be actionable, Thus it is established that no action will lie for doing that which the legislation has authorised, if it is done without negligence.
It is very necessary here to distinguish between conditional and absolute statute authority. Absolute authority is an authority of doing an act, in spite of the fact that it necessarily causes a nuisance or other injurious consequences, conditional authority on the other hand, is an authority of doing an act provided it can be done without causing any nuisance or other consequences.
However the following are not valid defences.
(a) Coming to the nuisance : It has been decided that it is no defence to y that the plaintiff himself came to the nuisance. In Sturrges v. Bridgman the defendant had for many years used a heavy machinery in his business as confectioner. His premises adjoined the former end of the garden of the plaintiff, a physician who afterwards built a consulting room at the foot of his garden and then found that in use of it, he was seriously inconvenienced. In this case, though the plaintiff himself came to the nuisance he was nevertheless entitled to complain of it as nuisance.
Again it is not a defence that the nuisance had only arsen because the plaintiff has chosen to use a particular part of his land. The law protects a man in the reasonable use of his land against those nuisances which the defendant has not acquired a prescriptive right to commit.
It is also no defence in an action that the nuisance although injurious to the individual is beneficial to the public at large.
(b) Conduct of third parties: It is no defence that the acts of defendant would not have been a nuisance, if others person acting independently of his did not do something at the same time. Where the plaintiff’s right of way was interfered with by the activities of four persons and their carts, but it was not proved to what extent each was responsible or indeed whether the acts of each in themselves amounted to an actionable interference, the plaintiff could have an injunction against all four defendants.
(a) Reasonable use of property: The defendant cannot put forth a defence that he is merely making a reasonable use of his own property. No use of property is reasonable which causes substantial discomfort to other persons or sensible harm to other’s property.
(b) Suitable place : It is not a defence to say that the place from which the nuisance proceeds is a suitable one for the purpose of carrying on operation complaint of and that no other place is available where less mischief would result.
Question: What are the defences which a defendant in an Action for Nuisance may take up? Also examine the defences which are not valid.