According to Dr. Winfield nuisance “is an unlawful interference with persons’ use or employment of land, or of some right over or in connection with it.”
According to Stephen “nuisance has been defined to be anything done to hurt or annoyance of the lands, tenements or hereditaments of another” not amounting other to trespass. According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful justification but not so as to amount trespass, if escape of any deleterious thing from his land or from elsewhere, into land in the possession of the plaintiff for example, water, smoke, smell, fumes, gas, noise, heat, vibration electricity, disease, germs, animals, negligence.”
Nuisance has been defined as on injury to the right of a person in possession of property to undisturbed enjoyment of it and result from an improper use by another person of his own property. The essence of tort of nuisance in interference with enjoyment of land. Nuisance is always concerned with invasion of interest in the enjoyment of land. In this kind of tort the wrongdoer does not enter the property in possession of another. He uses his own property in such a manner that he interfere with comfort of a person in possession of another property. Take for example, A has a shop opening into a narrow lane. B has a house on the other side of the lane. The latrine of B is accessible only through the lane. The removal of the stinking night soil causes physical discomfort to A. The act of B is a nuisance to A. Similarly A lives in a thickly populated town. He opens a Kiln and burns bricks in his compound and thus fills the whole atmosphere with smoke. By this act A cause discomfort to his neighbours. Likewise if A keeps a disorderly inn and a game house in the heart of the city, where bad characters assemble and make hubbub for the whole of the night so much so that they make it impossible for the public in general to sleep. In the examples given above the persons causing discomfort to other have not entered the property of the others. They have only used their own property in such away that the have disturbed others in the peaceful enjoyments of their own property. This covers interference with use and enjoyments of land by (coming of) water, fire, smoke, smell, fume, gas, noise, heat, electricity, disease or any other like things (from the land of another) which may cause such an inconvenience.
Public Nuisance
A public or common nuisance is an injury, danger or annoyance to the public generally and an offence against public rights, safety and convenience. Any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of subject. The sphere of the nuisance may be described generally as “The neighbourhood” but the question where the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary to prove that every member of the class has been injuriously affected. It is sufficient to show that representative section of the class has been so affected.
An isolated act may amount to a public nuisance if it is done in such circumstances that the public right to condemn it should be vindicated. The example of public nuisance are keeping of a disorderly inn and a game-house, burning limes on ones own premises, publicly getting of unwholesome provision or obstructing a highway.
Under Section 268 of the Indian Penal Code public nuisance is a crime. Section 268 defines public nuisance as an act of illegal omission which causes any common nuisance, injury, danger or annoyance to persons who may have occasion to use any public right.
Thus public nuisance is an act which affects the public at large, or considerable portion of it and it must interfere with the rights of the large members of community. Act which seriously interfere with the health, safety comfort or convenience of the public general or which tend to degrade morals have always been considered public nuisance, e.g., digging a pit of creating obstruction, erecting a wall on public road, carrying trade causing offensive smells, creating loud noises, keeping inflammable substance in large quantities, drawing water from a filthy source.
But no individual can bring an action against a public nuisance. For public nuisance only one action can be brought, otherwise millions of suits may be filed and it would be impossible to decide those cases.
If a person himself wants to bring action against a public nuisance, he must show a particular injury to himself beyond that which is suffered by the rest of the public and secondly, that the injury was direct and substantial. For example, in the above illustration where public have been obstructed, he has to prove that he has suffered more damage than the members of public have suffered. Public nuisance becomes and private nuisance when special damage is caused to a person. For example in the above illustration if person falls in the road pit, he can bring an action against the wrongdoer individually. But if he suffers the same inconvenience as suffered by others, he cannot bring an individual action. Public nuisance is act which causes inconvenience to the general public. Such acts which affects the heallth, safety, and convenience of the public. In Winterbottom v. Lord Derby defendant has obstructed a public way. In an action against the defendant the plaintiff contended that due to the obstruction he had to go from another way and had to spent money for removing it. It was held that he was not entitled to get damages because he had not suffered damage more than that suffered by the rest of public.
Acts authorised by law is ot nuisance
If doing of an act is authorised by law no action can be brought in respect of the injury caused by it, provided that the act must not have been done negligently, or person authorised to do the act has not taken required care to ward of the accident, the person doing the act would be liable. For example, running of trains is authorised by law and it necessarily creates noise and vibration. The railway company is not liable for the damage caused by running of trains unless it is proved that the railway authority could have reduced the noise and vibration by taking necessary measures.
How to sue for Public Nuisance
Public nuisance is a crime under Section 268 of Indian Penal Code and therefore no individual is entitled to bring a suit against it. In India, under Section 91 of the Cr. P.C. the Advocate-General or two or more persons of the public having obtained the consent in writing of the Advocate General may institute a suit for declaration and injunction or for such other relief as may be appropriate in the circumstance of the case.
Public Nuisance When Actionable by Private Person
To enable a private individual to bring an action for damages in respect of a public nuisance he must prove:
(1) Specific damage: That he has suffered, particular injury himself beyond that suffered by the rest of the public. If the alleged nuisance is, for instance, the obstruction of a highway, it is not enough for him to show that he suffers the same inconvenience in the use of the highway as other people do. He must show that he has suffered some damage more than what the general body of the public had to suffer. If a man digs a trench across a highway, a person cannot sue him simply because the trench prevents him from passing along the highway in the manner he is entitled to do, for that is an inconvenience caused equally to all who use the road. If he falls into that trench so that he breaks a limb or goods which he is carrying are spoiled, he shall have his action for this would constitute a particular damage to himself resulting from the common nuisance.
(2) Injury must be substantial : That such injury is a substantial character, not fleeting or evanescent. Therefore, in order to entitle a person to maintain an action for damages caused by that which is a public nuisance, the damage must be particular, direct and substantial. The object of this rule is to avoid multiplicity of litigation. Thus, the constant ringing of bells near a dwelling-place is a public nuisance and if it interferes with the comfort to tenant he will be said to suffer special damage and an action for public nuisance can lie at the instance of tenant who is a private individual.
(3) The injury must be direct and not merely consequential: Direct injury means an injury which may be foreseen by the defendant as probable in the sense that the plaintiff is likely to suffer additional and particular injury, over the above the inconvenience caused to the public. Thus, if one way is obstructed by the defendant and another is open, the obstruction will not entitle the plaintiff to file suit against the defendant.
Remedies for public nuisance:
The appropriate remedies for a public nuisance are two:
(1) Civil: In the case of public nuisance or other wrongful act affecting or likely to affect the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be initiated:
(a) by the Advocate General, or
(b) with the leave of the court by two or more persons, even though no special damages has been caused to such persons by reason of such public nuisance or other wrongful act.
Local bodies like Municipality, etc. has a legal right to remove obstructions, from the public ways. If they unreasonably deny to use their right a writ under Article 226 can be brought against them.
(2) Criminal: Chapter XIV of the Indian Penal Code and Sections 133 to 143 of the Criminal Procedure Code, 1973 prescribe the appropriate meaning in this respect.
Private Nuisance
A private nuisance is some unauthorised user of a man’s own property causing damage to the property of another or some unauthorized interference with the property or proprietary right of another, causing damage, but not amounting to trespass Underhillon torts. Private nuisance, include, obstruction to light and air, wrongful escape of foul gas, or noise, water, filth, germs, etc.
Elements of Private Nuisance :
The essence of the tort of private nuisance is that it is an unlawful interference and/or annoyance which causes damages to an occupier or owner of land in respect of his enjoyment of the land. Thus the elements of private nuisance are:
(1) unreasonable or unlawful interference;
(2) such interference is with the use or enjoyment of land, or some right over, or in connection with the land, and
(3) damage.
Private nuisance may be with respect to property or personal physical discomfort.
(1) Damage to Property: In the case of damage to property any sensible injury will be sufficient to support an action. Nuisances of this class arise from manufacturing works, drains, etc.
In Ram Raj Singh v. Babulal, the doctor plaintiff complained that sufficient quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients. The Court observed that when it is established that sufficient quantity of dust from brick powdering mill set up near a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular to himself. That means he has proved special damage.
In Shanmughaval Chettiar v. Rankumar Ginning Firm, the plaintiff firm (respondent) constructed building to locate Ginning Factory, thereafter obtaining licence therefor from the Panchayat union. The plaintiff had invested large funds and had also made elaborate arrangements to start the Ginning Factory. Thereafter the defendants were also granted a licence to start a brick kiln on the adjacent land.The plaintiff filed a suit for injunction restraining 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. I was held that the erection of the proposed brick kiln at that place would amount to actionable nuisance and, therefore, the plaintiff and 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.
A person can bring an action for damages caused to his property by overhanging branches of a tree on his neighbour’s land or by its roots which burrow under the ground. The person aggrieved can himself cut off the overhanging branches to abate the nuisance without entering upon the neighbour’s land. No prescriptive right can be acquired to have on overhanging tree as an old nuisance does not become by passage of the time a respectable nuisance.
(2) Physical Discomfort: In the case of physical discomfort, the act complained of must be :
(a) In excess of the natural and ordinary course of enjoyment of the property: The interference must be with the enjoyment or use of land. In order to be able to bring an action for nuisance to property the person injured must have either a proprietary or possessory interest in the premises affected by the nuisance. Where the acts complained of are nuisance by reason of injury to property, it is no defence that the locality is one devoted to trades which cause such injury. “If a man lives in town, it is necessary that he should subject himself to the consequences of those operations of trade and commerce, and also for the enjoyment of property, and for the benefit of trade and commerce, and also for the enjoyment of property, and for the benefit of inhabitants of the town and of the public at large.”
(b) Materially interfering with the ordinary comfort of human existence: The discomfort should be such as an ordinary or average person in the locality and environment would not put up with or tolerate. The following factors are material in deciding whether the discomfort is
substantial:
(i) Its degree or intensity;
(ii) Its duration;
(iii) Its locality; and
(iv) The mode of user of the property.
In India the law relating to private nuisance caused by noise has been laid down in Dhanna Lal v. Chittar Singh, in the following ways:
(1) Constant noise, if abnormal or unusual, can be actionable nuisance if it interferes with one’s physical discomforts.
(2) Generally, unusual or abnormal noise on the defendants premises which disturbs sleep of all the occupants of the plaintiff’s house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff’s house or which cannot allow the occupants of the plaintiff’s house to carry on their ordinary work is deemed to be a noise which interferens with one’s physical comforts.
(4) Even in a noisy locality, if there is a substantial addition to the noise by introduction of some machine, instrument which materially affects the physical comforts of the occupants of the plaintiff’s house, then also the noise will amount to actionable nuisance.
(5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property, will be ineffectual.
(6) If the defendant is found to be carrying on his business so as to cause nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of private nuisance.
Persons entitled to sue in Nuisance
Private Nuisance
As private nuisance is an unlawful interference with use or enjoyment of land or a right over or in connection with it, it is therefore, necessary for the plaintiff to have some title to the property affected; the plaintiff in order to maintain an action must show some
title to the thing to which the nuisance is alleged to be. Following persons are entitled to sue:
(1) The owner: The owner with possession is always entitled to sue for private nuisance.
(2) The Occupier: The occupier of land such as tenant in possession can sue for private nuisance. A person who has mere use of land without possession or a licence such as lodger or a guest, member of occupier’s family, servant cannot sue in nuisance.
(3) The Reversioners: If there is danger that the permanent injury may be caused to his property, the reversioner can bring an action in nuisance.
(4) The owner of an incorporeal hereditaments such as a right to air, light or profit can bring an action in nuisance for the interference caused to his right.
Public nuisance:
In case of public nuisance any person who has suffered special damage, is entitled to bring an action.
Who can be sued ?
1. The Creator of Nuisance: The person who creates a nuisance is always liable for its creation and continuance, even, if he is not occupier of a land on which the nuisance has been created.
2. An Occupier : Where an occupier of land or building fails to repair the premises, whereby a nuisance is created, he will be liable if he know or ought to have know the existence of danger.
Where a nuisance has been created upon a land, the occupier will be liable even if the nuisance has been created by some one else on the premises, such as servants or agents, occupier’s family members or guests, independent contractors and their servants, lawful visitor upon the premises.
Where a nuisance has been created by a previous occupier, the present occupier will be liable only if he knew of or ought reasonably to have known the existence of nuisance. So, where some excavations made on a land by the previous occupier, which could not reasonably have
been discovered by the present occupier, he cannot be held liable if an adjoining building collapsed because of his excavation.
Where a nuisance has been created by a trespasser, the occupier will generally be not liable unless (1) he, knowing of the nuisance, takes no reasonable steps to abate it; or (2) he adopts the nuisance.
3. Landlord: Generally a landlord will not be liable for the nuisance. It is the occupier or tenant who is the proper person to be sued. A landlord is not liable for a nuisance arisign during a tenancy unless he has authorised it or it is a necessary consequence for the purpose for which the tenancy was granted. But in following circumstances, the landlord may also be held responsible :
(a) where he knows or ought to have known after the commencement of the tenancy;
(b) where he has covenanted to repair;
(c) where he has reserved the right to enter and repair;
(d) where he has authorised the nuisance.
Remedies for Nuisance
The remedies available to a person for nuisance are three :
1. Abatement: This is very important Abatement means the removal of a nuisance by the party injured. The removal must be peaceable, without danger to life or limb and, if it is necessary to enter another’s land or property, prior notice should be given. Nuisance by a positive act of commission may be abated without notice but not nuisance due to omission. A private individual cannot abate a public nuisance, except under the three circumstances already discussed above.
2. Damages: The second remedy for nuisance is damages.
3. Injunction: The order to obtain an injunction it must be shown that the injury complained of as at present or impending is such as, by reason of its gravity, or its permanent character, or both, cannot be adequate compensated in damages.
Distinguish between Public and Private Nuisance
Ans. (1) A public or common nuisance affects the public at large or some considerable protion thereof, whilst the private nuisance affects only one person or a determinate body of persons. In other words, while a public nuisance is an offence against public rights, safety or convenience, a private nuisance is a violation of a private right of a person to the comfortable occuptation of property.
(2) Public nuisance does not create a civil cause of action for any person. An action cannot be maintained by private individual in his own name in respect of a public nuisance except under the three circumstances mentioned above. Private nuisance, on the oher hand, is actionable at the suit of any person in possession of land who is injured by reason thereof.
(3) While no length of time can legalize a public nuisance, a right to create or continue private nuisance may be acquired by prescription.
(4) While a private nuisance may be abated by the person injuriously affected thereby a public nuisance cannot be so abated by him.
(5) An action for damages lies in respect of a private nuisance but not in respect of public nuisance, unless the plaintiff has sustained à special damage. In case of a public nuisance, the action generally is for declaration and injunction.
(6) In the case of a public nuisance the remedies are available to the aggrieved persons both in the criminal court and civil court, but in the case of a private nuisance the remedy available is only in the civil court by way of an action for damages; in other words public nuisance is actionable as well as indictable, while private nuisance is only actionable; but in either case no action will lie for a nuisance unless it is the case of actual damage to the plaintiff, because no man is bound to prevent the escape form his land of things which do not harm.
Distinguish between Trespass and Nuisance
(1) Trespass is an injury to possession itself; nuisance to some right necessary to possession.
(2) Trespass is actionable per se, while nuisance (except in the case of nuisance consisting of injuries to servitudes) is actionable only on proof of actual damage. Thus, trespass and nuisance are mutually exclusive. But, they may overlap when the injury is to possessory as well as to some right necessary to possession e.g. trespass of cattle discharge of noxious matter into a stream and ultimately on another’s land.
(3) To cause a material and tangible loss to an object or to enter another person’s land is trespass and not nuisance; but where the thing is not material and tangible (such as electricity, noise, smell, smoke) or where though material and tangible, it is not the direct act of the defendant but merely consequential on his act, the injury is not trespass but merely a nuisance actionable on proof of actual damage.
(4) Unwarranted century on the property of another is a necessary ingredient of trespass, nuisance, on the other hand, may be caused by mere unawarranted user of one’s own property. (5) Simple entry on another’ property without causing him any other injury would be trespass. In nuisance injury to the property of another or interference with his personal comfort or enjoyment of property is necessary.