Nuisance in Tort Law

Introduction to Nuisance in Tort Law

A person in possession of a property is entitled to its unhindered enjoyment in accordance with law. However, if someone else’s improper use or enjoyment in his property ends up resulting into an unlawful interference with his enjoyment or use of that property or certain rights over it, in such a situation, we can say that the tort of nuisance has occurred.

The Indian Penal Code defines nuisance as an act that normally causes any general injury, danger or annoyance to those who live in or occupy property in the vicinity, or that necessarily cause injury, hindrance, danger, or annoyance. Persons who may have the opportunity to exercise any public right.

Nuisance is an injury to a person’s right to possession of his property, and the enjoyment of the same is disturbed by another person. The law assumes that a minor inconvenience must be tolerated as they are unavoidable; example if you build your house along a high road, cars will always pass by, sounding their horns.

Nuisance in Tort Law

The word “nuisance” has been derived from the Old French word “nuire” which means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is “nocere” which means “to cause harm”. The law recognizes that minor inconveniences should be endured as they are inevitable; example if you build your house along a high way, cars will always pass with their horns hooting.

What is Nuisance in Tort Law?

Meaning of Nuisance in Tort Law: – Nuisance means disturbances. In law of tort, it may be described as unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it. Nuisance is an unlawful interference with a person’s use and enjoyment of land, or of some right over, or in connection with it. Hence it is an injury or inconvenience faced by a person in the use of his property because of another person who unreasonably uses his own property in a way which negatively affects the former.

The tort of nuisance is an act which gives rise to unlawful, unwarranted or unseasonable annoyance or discomfort to the plaintiff and which results in damage to the property of the plaintiff or interfere with his use and enjoyment of his land.

Under normal circumstance, a person is entitled to the full and reasonable enjoyment and use of their property tangible, intangible, movable or immovable, whatsoever. This being his legal right cannot be taken away without lawful justification. Contrary to the provided protection if someone unlawfully interferes with this entitlement of a person, he/she commits a tort of Nuisance.

In law, nuisance has a more restrictive meaning than in common parlance. All the inconveniences will not succeed in an action for the nuisance as minor inconveniences are generally not actionable in law as a result of normal human interaction in society.

Definitions of Nuisance in Tort Law by Various thinkers

  • According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another, or of the lands, one which doesn’t amount to trespass.
  • According to Salmond, nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

What are the essential elements of nuisance in tort law?

In order to make an act of nuisance actionable under the law of the offence, the following essential things must be fulfilled: –

  1. Wrongful Act by Defendant: – The first requirement for action against wrongful act nuisance by the defendant is the conduct of a wrongful act by the defendant. This may include any action which is not prima facie legal and inappropriate in the eyes of a wise man.
    • Caution: – If the Plaintiff is extra sensitive and finds the action of the Defendant to be unreasonable due to his sensitivity, which otherwise is reasonable as per a prudent man, the action for Nuisance cannot arise.
  1. Damage or Loss or Inconvenience caused to the Plaintiff: – The actual damage or inconvenience caused by the next inevitability requires plaintiff. The proverb “De minimis non curate lex” comes into play and provides that law shouldn’t consider the small things or minimal damages claimed by the plaintiff because of your sensitivity. However, if the defendant’s act involves obstruction of legal rights, Plaintiff, nuisance comes into play.

What are the kinds of Nuisance?

Nuisance as a tort is further categorized into two types: – Private Nuisance and Public Nuisance, both having their own areas of actions and types of damages.

  1. Public Nuisance: – A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Simply speaking, a public nuisance is an act affecting the public at large or some considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy.

Public nuisance affects the society and the people living in it, or some large part of the society and it affects the rights that the members of the society can enjoy on property. An act that seriously affects or impairs the health, safety or comfort of the general public is a public nuisance.

Essentials of Public Nuisance: – A person must have done an act or an illegal omission. Such an act or omission must cause any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity.

Cases where a person may have a private right of action in respect of a public nuisance: –

  • He must show the existence of any personal injury that is of a higher standard than the rest of the public.
  • Such injury has to be direct and not merely a consequential injury.
  • A greater impact of the injury should be shown.
  1. Private Nuisance: – Private nuisance is a type of nuisance in which one person’s use or enjoyment of his property is ruined by another. It can also harm the property owner by physically injuring his property or by affecting the enjoyment of the property. Unlike in public nuisance, in private nuisance, a person’s use or enjoyment of property is ruined because it is isolated from the public or society. Remedy of private nuisance is civil action for damages or injunction or both.

Elements that constitute a Private Nuisance: –

  • The interference must be unreasonable or unlawful. This means that the act should not be justified in the eyes of the law and must be done by an act which no reasonable person would do.
  • Such interference must be with the use or enjoyment of land, or with certain rights over property, or it must be in relation to property or bodily discomfort.
  • There must be observable damage to the property or with the enjoyment of the property in order to constitute a private nuisance.

A nuisance may be in respect of either property or physical discomfort: –

  • Damage to Property: – In case of damage to property, any sensible injury will be sufficient to support an action. Nuisances of this class may arise from manufacturing works, chains, etc. For example, smoke, fumes, gas, noise, water, filth, trees or animals.
  • Physical Discomfort: – In the case of physical discomfort, the act complained of must be in excess of the natural and ordinary course of enjoyment of the property materially interfering with the ordinary comforts of human existence. For example, carrying any trade causing nuisance, obstruction of light, etc.

What are the remedies for nuisance in tort law?

The remedies for nuisance in tort law are as follows: –

  1. Injunction: – An injunction is a judicial order that prohibits a person from doing or continuing to do an act that might threaten or invade the legal rights of another. This may be in the form of a temporary injunction granted for a limited period of time which may be reversed or confirmed. If it is confirmed, it takes the form of a permanent injunction. Injunction is a discretionary remedy and the court has discretion to grant or refuse injunction so that even if one has made out a good case for the grant of injunction, the court may still find a good reason to refuse injunction. There are many types of injuctions: –
    • Interim Injunction: – Obtained pending the determination of the interlocutory injunction (applicable in urgent cases).
    • Interlocutory Injunction: – Obtained pending the determination of the final injunction.
    • Final Injunction: – This exists to prohibit one from doing something.
    • Mandatory Injunction: – This exists to mandate one to do something.
    • Prohibitory Injunction: – this exists to prohibit one from doing something.
  1. Damages: – The damages may be offered in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the purpose of the damages is not just compensating the individual who has suffered but also making the defendant realise his mistakes and deter him from repeating the same wrong done by him.
  1. Abatement: – This refers to self-help in order to stop nuisance. Reduction of nuisance means removal of nuisance by the aggrieved party, without any legal proceedings. Such measures are not in favour of the law. But available under certain circumstances. This privilege must be exercised within a reasonable time and usually requires notice to the defendant and his failure to act. Reasonable can be used to employ abatement, and the plaintiff will be liable if his actions go beyond reasonable measures.

For Example: – Ace and Beck are neighbours; Beck has a poisonous tree on his land that grows overtime and reaches Ace’s land. Now Ace has every right to cut down that part of the tree that affects the enjoyment of his land by giving Beck’s prior notice. But if Ace approaches Beck, lands without his permission, and cuts down the entire tree that falls on Beck’s land, then Ace would be wrong here because his action would be beyond reasonableness.

What are the defences available to Nuisance?

The defences available to Nuisance in tort law are as follows: –

  1. Prescription: – A prescription is a title acquired by use and time and which is permitted by law, any property a person claims because his ancestors had possession of the property by law. A prescription is a special type of defence, i.e., if a nuisance is going on peacefully and freely without interruption, a prescription is available to the defendant. On the expiration of this period of twenty years, the nuisance becomes valid as if authorized at its commencement by a grant from the owner of the land. The essence of the prescription is explained in section 26 of the Limitation Act and Section 15 in The Indian Easements Act, 1882.

There are three essentials to establish a person’s entitlement by prescription are: –

  • Use or enjoyment of property: – The use or enjoyment of property must be acquired by the person by law and the use or enjoyment must be done openly and peacefully.
  • Identification of the object/property: – The person should be aware of the identity of the object or property which he is enjoying peacefully or publicly.
  • It must be prejudicial to the rights of another person: – The use or enjoyment of the article or property must be such that it is affecting the rights of another person and thereby causing a nuisance and the use of such nuisance even after knowing the reason no action would have been taken against the person causing it for at least twenty years.
  1. Statutory Authority: – When a statute authorizes the use of land to do a particular act or way, all remedies are removed by the action or indictment or charge. Provided that every necessary reasonable precaution has been taken. In exercising such powers, the defendant must ensure that all reasonable care and skill is used and it he does not go outside the powers given by the statute. Statutory authority can be either absolute or conditional.
    • When an absolute right, the statue permits the act and does not require the act to cause nuisance or any other form of injury.
    • Whereas in the case, where there is a conditional authority, the State allows the act to be done only if it can be done without causing nuisance or injury of any other kind.
  1. Act of a Stranger: –defence to an action in nuisance or under the rule in Rylands vs. Fletcher, where the damage is caused by the independent act of a stranger over whom the defendant has no control. The plaintiff has not made out any case against the defendant, he has only succeeded in making out a case against a stranger who cause the nuisance.
  1. Inevitable Accident: – The inevitable accident which is also known as unavoidable accident says that a person cannot be held liable for an accident which was not foreseeable despite all care and caution taken from his side. The accident was unavoidable.
  1. Act of Necessity: – The doctrine of necessity states that if an act is done and it causes harm but it is done in good faith in order to prevent harm, the person who does such an act is not liable. This is so provided that the harm caused due to an act done in necessity should not be intentional in nature.

Difference between Nuisance and Trespass

1.Nuisance is an injury to some right of possession of property, but not possession of itself.Trespass is the direct physical interference with the possession of the property of the plaintiff by means of some material or tangible object.
2.In nuisance the proof of actual damage to the property is required.Trespass is actionable per se (actions which do not require allegations or proof).
3.If the interference in the use or enjoyment of property is consequential it would amount to a nuisance.If the interference with the use of the property is direct, then there is wrongful trespass.
4.If there is any injury to the property of another or any interference with his enjoyment of the property, it shall be a nuisance.Entering into the property of another person without the consent of the owner and without causing any injury to him would be trespassing.
5.For example: – If a person plants a tree on his own land which then grows on another’s land it would be a nuisance.For example: – It would be trespass to plant a tree on someone else’s land.

Case Laws

  1. Ushaben Navinchandra Trivedi vs. Bhagyalaxmi Chitra Mandal AIR 1978 Guj 13, (1977) GLR 424

Facts of the Case: – In this case, the plaintiff sued the defendant for a permanent injunction to prevent the defendant from showing a film titled “Jai Santoshi Maa”. It was stated by the plaintiff that the content of the film hurts the religious sentiments of the people of the Hindu community as well as the religious sentiments of the plaintiffs as the Hindu goddesses Lakshmi, Parvati and Saraswati are depicted in the film. They were jealous of each other and ridiculed in the film.

Judgement of the Case: In this case, the court held that hurting religious sentiments was not an actionable wrong.

  1. Radhey Shyam vs. Gur Prasad AIR 1978 All 86

Facts of the Case: – Mr. Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for permanent injunction restraining the defendant from installing and running a flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and five other individuals for a permanent injunction from running and continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn was affecting the health of the plaintiff.

Judgement of the Case: – In this case, the court held that by running a flour mill in a residential area, the respondent was causing a nuisance and badly affecting his health.

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