Concept of Nuisance

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 anyway, e.g., noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs.

Distinction between Trespass and Nuisance:

Both nuisance and trespass are similar insofar 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:

1. 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 land and the roots or branches project into or over the land of another person, that is nuisance.

2. 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.

3. 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.

4. A trespass is actionable per se, but in an action for nuisance, special damage has got to be proved.

Definition and Kinds

Origin:

1. Etymology: Derived from the Old French word “nuire” / French word ‘nutre’ meaning “to cause harm, hurt, or annoy”. Its Latin origin is “nocere” meaning “to cause harm”.

1. Ordinary Meaning: Anything that annoys, hurts, or is offensive. Nuisance is a continuing wrong, requiring a continuous period and not momentary occurrence.

Definitions of Nuisance:

Definition of nuisance as given by some eminent personalities:

1. Salmond: Causing or allowing, without lawful justification, the escape of any deleterious thing from one’s land into another’s possession (e.g., water, smoke, fumes, noise).

1. Winfield: Unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

1. Pollock: Wrong done by unlawfully disturbing a person in the enjoyment of their property or a common right.

1. Stephen: Anything done to hurt or annoy the lands, tenements of another, not amounting to trespass.

Kinds/Types of Nuisance:

Nuisance is of two kinds:

1. Public or Common Nuisance
2. Private Nuisance, or Tort of Nuisance

1. Public Nuisance

Defined under Section 268 of the Indian Penal Code / Section 270 of the BNS.

Public Nuisance is a crime whereas private nuisance is a civil wrong. Public Nuisance is interference with the right of public in general and is punishable as an offence.

Case Law:

Here is a relevant case law with respect to Public Nuisance:

1. Dr. Ram Raj Singh v. Babulal (1982) – In this case, the defendant created a brick grinding machine adjoining the premises of the plaintiff, who was a medical practitioner. The brick grinding machine generated dust, which polluted the atmosphere. The dust entered the consulting chamber of the plaintiff and cause physical inconvenience to him and patients, and their red coating on clothes, caused by the dust, could be apparently visible. It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running brick grinding machine there.

2. Private Nuisance

Unauthorized use of one’s property causing damage to another’s property or interference with proprietary rights. It may involve obstruction to light, wrongful escape of gases, noise, water, etc.

Essential Elements:

To constitute the tort of nuisance, the following essentials are required to be proved:

1. Unreasonable Interference;
2. Interference with the use or enjoyment of land;
3. Damage.

a. Unreasonable Interference

Interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property.

A balance has to be made between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”

For the purpose of nuisance, it has to be seen as to “what is reasonable according to the ordinary usages of mankind living in society, or more correctly in particular society.”

Case Laws:

Here are some relevant case laws with respect to Unreasonable Interference:

1. Radhey Shyam v. Gur Prasad (1978) – In this case, Gur Prasad and another filed a suit against Radhey Shyam and others for a permanent injunction to restrain them from installing and running a flour mill in their premises. It was alleged that the said mill would cause nuisance to the plaintiffs, who were occupying the first floor portion of the same premises inasmuch as the plaintiffs would lose their peace on account of rattling noise of the flour mill and thereby their health would also be adversely affected. It was held that substantial addition to the noise in a noisy locality, by the running of the impugned machines, seriously interfered with the physical comfort of the plaintiffs and as such, it amounted to nuisance, and the plaintiffs were entitled to an injunction against the defendants.

1. Ushaben v. Bhagya Laxmi Chitra Mandir (1978) – In this case, 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 feeling 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. 

Now we have three aspects with respect to Unreasonable Interference:

i. Sensitive Plaintiff - Reasonable acts do not become unreasonable due to the plaintiff’s sensitivity.

For instance, if some noises which do not disturb or annoy an ordinary person but disturb only the plaintiff in his work or sleep due to his over sensitiveness, it is no nuisance against the plaintiff.

Relevant Case Law:

1. Robinson v. Kilvert (1889) – In this case, the plaintiff warehoused brown paper in a building. The heat created by the defendant in the lower portion of the same building for his own business dried and diminished the value of the plaintiff’s brown paper. The loss was due to an exceptionally delicate trade of the plaintiff and paper generally would not have been damaged by the defendant’s operations. It was held that the defendant was not liable for the nuisance. “A man who carries on the exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his own property, if it is something which would not injure anything but an exceptionally delicate trade.”

ii. Does nuisance connote state of affairs - Nuisance is a continued wrong, casual inconveniences not generally considered.

Relevant Case Law:

1. Stone v. Bolton (1949) – In this case, the plaintiff, while standing on a highway, was injured by a cricket ball hit from the defendant’s ground, but she could not succeed in her action for nuisance. It was held that an isolated act of hitting a cricket ball on to a road cannot amount to a nuisance.

iii. Malice – If an act is otherwise lawful, it does not become unlawful merely because the same has been done with an evil motive, but if it becomes unreasonable, it is actionable.

b. Interference with the use or enjoyment of land

Interference may cause either:

1. Injury to the property itself, or
2. Injury to comfort or health of occupants of certain property.

i. Injury to property – An unauthorised interference with the use of the property of another person through some object, tangible or intangible, which causes damage to the property, is actionable as nuisance.

Relevant Case Law:

1. St. Helen’s Smelting Co. v. Tipping (1865) – In this case, fumes from the defendant company’s works damaged plaintiff’s trees and shrubs. Such damage being an injury to property, it was held that the defendants were liable. The plea that locality was devoted to works of that kind was unsuccessful.

Now, here are various aspects related to Injury to Property:

1. Nuisance to Incorporeal Property

~ Interference with the right of support of land and buildings:

A person has a ‘natural’ right to have his land supported by his neighbours.

According to Section 34, Indian Easements Act –

“The removal of the means of support to which a dominant owner is entitled does not give rise to a right to recover compensation, unless and until substantial damage is actually sustained.”

~ Right to support by grant or prescription:

In respect of buildings, the right of support may be acquired by grant or prescription.

Case: Dalton v. Angus (1881) – In this case, the plaintiff and the defendant had houses on adjoining lands and each house had lateral support from the neighbouring land. The plaintiff converted his house into a factory, which now required a stronger lateral support. More than 20 years thereafter, the defendant demolished his house and made certain excavations on his land as a result of which the plaintiff’s factory subsided. It was held that the plaintiff had acquired the right or prescription for the support of his factory after the lapse of 20 years from the construction thereof and, therefore, the plaintiff’s claim to damages succeeded.

~ Interference with right to light and air:

England:

Right to Light – It’s not a natural right. It is not enough to show that the plaintiff’s building is having les light than before. In order to be actionable, substantial diminution in the light has to be proved.

Case: Colls v Home and Colonial Stores Ltd. (1904) – In this case, the construction of a building by the defendant only diminished the light into a room on the ground floor, which was used as an office and where electric light was otherwise always needed. It was held that the defendant was not liable.

Right to Air – It is possible to acquire a right of air by grant and prescription. After such a right had been acquired, its infringement is a nuisance. It is, however, not possible to acquire a right to the access of air over the general unlimited surface of a neighbour’s land.

Case: Brass v. Gregory (1890) – In this case, the defendants blocked a shaft by means of which the plaintiff’s public house had received ventilation for forty years. It was held to be a nuisance.

India:

Right to Light and Air – It may be acquired by an easement. Section 25, Limitation Act, 1963 and Section 15, Indian Easements Act, 1882 make similar provisions regarding the mode and period of enjoyment required to acquire this prescriptive right.

The prescriptive right of easement of access and use of light and air can be acquired if the light has been:

1. peaceably enjoyed;
2. as an easement;
3. as of right;
4. without interruption; and
5. for 20 years.

When there is substantial infringement of an easement of light and air, the same is actionable by an action for damages according to Section 33 of the Indian Easements Act. Section 33 also mentions what is substantial infringement of an easement and the principles are the same as stated in the case of Colls v. Home and colonial Stores Ltd.(1904).

ii. Injury to comfort or health – Substantial interference with the comfort and convenience in using the premises is actionable as a nuisance. A mere trifling or fanciful inconvenience is not enough.

The rule is De minimis non curat lex, that means that the law does not take account of very trifling matters.

Disturbance to the neighbours by playing music in day is a reasonable act, but playing the same music at night so as to disturb the sleep of the neighbour constitutes nuisance.

c. Damage

Unlike trespass, which is actionable per se, actual damage is required to be proved in an action for nuisance. 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.

Relevant Case Law:

1. Fay v. Prentice (1854) – In this case, a pillar of the defendant’s house projected over the plaintiff’s garden. It was held that the mere fact that the pillar projected over the plaintiff’s garden raises a presumption of fall of rain water into and damage to the garden and the same need not be proved. It was a nuisance.

Defences

Defences against Nuisance:

1. Prescription

Right acquired through long and continuous use (20 years in India, as per Limitation Act and Easements Act).

Case Law:

Here are some relevant case laws with respect to prescription as a defence against nuisance:

1. Mohini Mohan v. Kashinath Roy (1909) – In this case, it was held that no right to hold kirtan upon another's land can be acquired as an easement. Such a right may be acquired by custom.

1. Sturges v. Bridgman (1879) – In this case, the defendant, a confectioner had a kitchen in the rear of his house. For over twenty years, confectionary materials were pounded in his kitchen by the use of large pestles and mortars, and the noise and vibrations of these were not felt to be a nuisance during that period by the plaintiff., a physician, living in the adjacent house. The physician made a consulting room in the garden in the rear in his house and then for the first time, he felt that noise and vibrations caused in the confectioner’s kitchen were a nuisance and they materially interfered with this practice. The court granted an injunction against the confectioner, and his claim of prescriptive right to use mortars and pestles there, failed because the interference had not been an actionable nuisance for the preceding period of 20 years. Nuisance began only when the consulting room was built by the physician at the end of the house.

2. Statutory Authority

Acts authorized by statute can be a defence.

Thus, a railway company authorised to run railway trains on a track is not liable if, in spite of due care, the sparks from the engine set fire to the adjoining property or the value of the adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.

Defences that don’t work (Ineffectual Defences):

1. Nuisance due to act of others – Combined actions causing nuisance.

Sometimes the act of two or more persons, acting independently of each other, may cause nuisance although the act of any one of them alone would not be so. An action can be brought against any one of them and it is no defence that the act of the defendant alone would not be a nuisance, and the nuisance was caused when other had also acted in the same way.

Case Law:

Here is a relevant case law with respect to the above mentioned ineffectual defence against nuisance:

1. Lambton v. Mellish (1894) – In this case, two rival businesses, owned by Mellish and Cox, were operating merry-go-rounds with loud organs in a common area, competing for customers. The combined noise created an actionable nuisance for a nearby resident. The court found both parties liable. The court reasoned that when a nuisance is the result of the aggregate of two or more smaller offenses, and the parties are aware of each other's actions, each party is responsible for the overall damage. An injunction could be granted against both, requiring each to stop playing their organ, even if one's organ alone was not loud enough to be a nuisance by itself.

2. Public Good - Public benefit does not justify individual nuisance.

It is no defence to say that what is a nuisance to a particular individual is beneficial to the public in general, otherwise no public utility undertaking could be held liable for the unlawful interference with the rights of individuals.

Case Law:

Here is a relevant case law with respect to public good as an ineffectual defence against nuisance:

1. Adams v. Ursell (1913) – In this case, an injunction was issued preventing the continuance of fried fish shop in the residential part of a street although, as alleged, the injunction would mean a great hardship to the defendant and his ‘poor’ customers.

3. Reasonable Care – Use of reasonable care to prevent nuisance is generally no defence.

Case Law:

Here is a relevant case law with respect to reasonable care as an ineffectual defence against nuisance:

1. Rapier v. London Tramways Co. (1893) – In this case, considerable stench amounting to nuisance was caused from the defendant’s stables constructed to accommodate 200 horses to draw their trams. The defence that maximum possible care was taken to prevent the nuisance failed and the defendants were held liable.

4. Plaintiff coming to nuisance – It is no defence that the plaintiff himself came to the place of nuisance.

Case Law:

Here is a relevant case law with respect to the above mentioned ineffectual defence against nuisance:

1. Bills v. Hall (1838) – In this case, in an action for nuisance for “Diverse noisome, noxious and offensive vapour, fumes, smell, and stenches” out of defendant’s tallow-chandlery, it was held, to be no defence that business had been continuing for three years before the plaintiff came to that place.

Remedies

Remedies for nuisance are as follows:

1. Damages - Compensation for the aggrieved party.

The damages offered to the aggrieved party could be:

1. Nominal damages - damages just to recognise that technically some harm has been caused to the plaintiff, or
2. Statutory damages - where the amount of damages is decided by the statute and not dependent on the harm suffered by the plaintiff, or
3. Exemplary damages – where the purpose of paying damages is not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.  

2. Injunction - Judicial order to stop or prevent a nuisance act. It may be in the form of temporary injunction or permanent injunction.

Case: Ushaben NavinChandra Trivedi v. Bhagyalaxmi Chitra Mandir – In this case, the plaintiff, Ushaben Navinchandra Trivedi, filed a suit against the defendant, Bhagyalaxmi Chitra Mandir, a cinema hall, seeking a permanent injunction to restrain them from exhibiting the film “Jai Santoshi Maa.” The plaintiff claimed that the film hurt her religious feelings as it depicted the Hindu goddesses Saraswati, Lakshmi and Parvati in a manner that she found derogatory and offensive. According to her, the film portrayed these goddesses as jealous and vengeful, which was contrary to her religious beliefs and sentiments.

The primary issue before the court in Ushaben Navinchandra Trivedi v Bhagyalaxmi Chitra Mandir was whether the plaintiff’s hurt religious feelings constituted a legal injury, thereby entitling her to seek an injunction against the exhibition of the film.

The court held that the plaintiff’s hurt religious feelings did not constitute a legal injury. The principle of “Damnum Sine Injuria” was applied, indicating that while the plaintiff may have suffered hurt feelings, it did not amount to a legal wrong that could be remedied by the court. The court observed that it is undesirable to insult or irritate religious susceptibilities, but mere annoyance to feelings cannot be a ground to grant an injunction.

3. Abatement - Self-help to terminate the nuisance (requires notice unless immediate danger).

An occupier of land is permitted to abate, i.e., to terminate by his own act, nuisance which is affecting his land.

For instance, he may cut the branches coming over to his land, of the tree planted on the defendant’s land.

A notice to the other party is required unless the nuisance constitute a change to the life or property. When the abatement is possible without going on the wrongdoer’s land, the same may be done without notice.