NUISANCE
The meaning of the term nuisance has taken many different forms over the years and is often very vague in its definition. In general, the term is characterized by a simple annoyance or hurt caused by some person or thing. Historically, nuisance referred to the denial of someone’s rights to use land. In the thirteenth century, the writ of nuisance was available to plaintiffs to take action against those injuries which were committed wholly on the land of the defendant, but interfered with the rights of the plaintiff. This was the beginnings of the modern day private nuisance. An extension of private nuisance eventually gave rise to public nuisance as well. Any interference on the rights of the public, or the rights of the crown, was considered to be a crime. These crimes first developed from wrongdoings on the property of a public highway, or other public property. Because of the similarity between crimes against private property and public property, these wrongdoings were also labelled as nuisances. The term became so widely used that it began to describe all types of crime against the crown or against private citizens. A private nuisance is primarily based on a civil wrong in which the rights of a private individual, in which a wrongdoing has interfered with the plaintiff’s land. A public nuisance refers instead to a crime which effects the rights of the public at large. It is a very broad term that encompasses many different offenses. A public and private nuisance actually have very little comparison, except in name. The nature of the offenses are actually very different, but they both include some kind of interference by the wrongdoer that disturbs the plaintiff, or the public. In order for a defendant to be guilty of a private nuisance, he must have substantially interfered with the right of a plaintiff’s enjoyment of land. A public nuisance must effect the community in general. Absolute nuisances are nuisances for which the defendant is strictly liable. Certain activities are so sure to cause a nuisance that they are labelled this way. Setting off fireworks in public, storing flammable substances on one’s property, or even such things as extremely bad odors, will qualify as absolute nuisances.
Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per 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 of some of the rights over it, or in connection with it, we can say that the tort of nuisance has occurred. Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment of it any results from an improper usage by another individual. Nuisance is a word that everybody understands and we can say that nuisance in common parlance means nothing more than inconvenience to people or to another. 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.
Meaning and Definition
The word Nuisance is derived from the French word ‘Nuire’ which means to annoy or hurt. It is an unlawful interference with a person’s use or enjoyment of land. Under normal circumstance, a person is entitled to the full and reasonable enjoyment and use of this 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. As per the most accepted definition of Nuisance which is the one given by Birmingham, 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. According to Stephens “Nuisance is anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to trespass. Another Jurist Salmond expresses “The wrong of Nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, fumes, smoke, gas, noise, heat, vibration, electricity, disease, germs, animals. Nuisance in Legal Terms In law, nuisance has a more restrictive meaning than it has in an ordinary parlance. It is not all inconveniences that will succeed in an action for nuisance. Minor inconveniences which are usually as a result of normal human interaction in the society are not actionable in law. The law always tries to strike a balance between the conflicting interest of the plaintiff and the defendant in the society. So we can define the tort of nuisance as 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.
Essential Elements of Nuisance
For making an act of Nuisance actionable under the law of torts the following essentials must be satisfied-
• Wrongful Act by the Defendant -
For the Action against Nuisance to arise the first essentiality is the conduct of a wrongful act by the Defendant. This may include any action which is prima facie not legal and unreasonable in the eyes of a prudent man.
Caveat – 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.
• Damage/Loss/Inconvenience caused to the Plaintiff-
Inconvenience or annoyance caused to another which the law considers as substantial or material as opposed to sensitivity or delicacy.
Case Law:
In Ushaben V. Bhagya Laxmi Chitra Mandir , where the Plaintiff sued the Defendant against the screening of the movie “Jai Santoshi Maa” claiming that it hurts the Religious sentiments of a particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling was not an actionable wrong and the Plaintiff is free to not watch the movie again. Hence it was held that in order to claim damages for Nuisance, the interference shall be in a state of continuing wrong.
In Halsey V. Esso Petroleum Co. Ltd , where the defendant’s factory emitted smokes, oil, fumes and smell and polluted the environment along with harming the plaintiff’s health because of his own sensitive health issue, the former were held liable to the latter only for the emission of smoke, oil and fume and not for health hazard.
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.
Private nuisance, or Tort of Nuisance
Private nuisance protects the interest of the occupier of land or premises in the use and enjoyment of his land. This type of nuisance usually emanates from the defendant’s private land or his actions in his private capacity. Accordingly, a plaintiff must show that he has some interest in the land in question. Thus, the land must not be public land. The law of private nuisance seeks to strike a balance between two conflicting interests; that of an occupier in the using his land as he thinks fit and that of his neighbor in the quiet enjoyment of his land. Thus, a person must not use his property is such a way that will cause inconvenience to his neighbors. In an action for private nuisance, the court considers the following:
i) Whether the injury complained of is sensible in the case of material damage to property and in the case of interference with enjoyment of land, whether the injury is substantial.
ii) Whether the conduct of the defendant is unlawful, unwarranted or unreasonable.
Elements which constitute a private nuisance
To constitute the tort of nuisance, the following essentials are required to be proved:
• The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be by an act which no reasonable man would do.
• Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort.
• There should be see able 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
1- Property-
In the case of a nuisance with respect to the property, any sensible injury to the property will be enough to support an action for the damages.
2- Physical discomfort-
In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.
• In excess of the natural and ordinary course of enjoyment of the property. The usage by the third party should be of out of the natural course of enjoyment from one party.
• Interfering with the ordinary conduct of human existence. The discomfort should be of such a degree that it would affect an individual in the locality and people would not be able to put up or tolerate with the enjoyment.
Public or Common Nuisance
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance refers to that which affects the general public or a section of the public and punishable as an offence. It is that which affects the public segment or class of the public by reason that it is indiscriminate in its effect or widespread. A nuisance may become public nuisance either from its source or its final effect or destination. Again, a nuisance that affects a class or a segment of a society is public nuisance and whether the number of persons affected is sufficient to merit public nuisance is a question of facts depending on the facts and circumstances of each case. Everything is to be looked at from a reasonable point of view.
Instances, of public nuisance include obstruction of highway or public roads, public waterways, noises pollution, oil spillage from the activities of multi-national oil companies and carrying on obnoxious business like operating a brothel in a GRA.
A public nuisance is usually a crime (see section 234 of the Criminal Code and sections 192 & 194 of the Penal Code) which can only be prosecuted by the Attorney General in his capacity as the custodian of public right. In other words, a private person has no right to prosecute the crime of public nuisance; the Attorney-General prosecutes.
However, for a private person to sue for public nuisance, he has to show that he has suffered a particular or special loss/damage over and above that suffered by other members of the public.
In the case of Campbell v. Paddington Corporation, the plaintiff was the owner of a building in London. The funeral procession of King Edward VII was to pass from a highway just in front of the plaintiff’s building. An uninterrupted view of the procession could be had from the windows of the plaintiff’s building. Plaintiff accepted payments from certain persons and permitted them to occupy seats in first two floors of her building. Before the date of said procession, the defendant corporation constructed a stand on the highway in front of the plaintiff building to enable the members of the Corporation and its guests to have a view of procession. This structure now obstructs the view from the plaintiff’s building. Because of the obstruction, the plaintiff was deprived of the profitable contract of letting the seats in her building. She filed a suit against the Corporation contending that the structure on the highway, which was a public nuisance, had caused special loss to her. It was held that she was entitled to claim compensation.
If the plaintiff cannot prove that he has suffered any special damage, i.e., more damage than suffered by the other members of the public, he cannot claim any compensation for the same. This may be explained by referring to Winterbottom v. Lord Derby. In that case, the defendant’s agent blocked a public footway. The plaintiff brought an action alleging that sometimes he had to go by another route and sometimes he had to incur some expenses in removing the obstruction. Held, he could not recover as he had not suffered more damage that could have been suffered by other members of the public.
Remedies for Nuisance
The following remedies exist for nuisance. They are
a) Abatement of Nuisance:
It means removal of a nuisance by the suffering party without giving the notice to other party. In short, this refers to self-help in order to stop nuisance. Generally self-help is not allowed by the court or the law. The court usually frowns at the remedy of self-help. This is to avoid chaos in the society.
b) Injunction:
This is the most important judicial remedy in cases of nuisance. Injunction is a judicial order restraining a person from doing an act that violates the legal rights of another party. It may be in form of temporary injunction but in special cases it may treated as permanent injunction.
c) Damages:
This is the monetary compensation for any loss or injury occasioned to the plaintiff by reason of the nuisance. The damages paid by aggrieved party is decided by the statue and purpose of the damages is not just compensating but also to realize the defendant his/ her mistake.
Defences to an Action for Nuisance
It is germane to note that some of the defences in nuisance are strictly speaking not defences but only go to show that nuisance has not been proved. The defences are;
Effectual Defences
1. Prescriptive right to commit nuisance
A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. A right to continue a nuisance can be acquired by prescription if it has been peaceably enjoyed as a right without interruption for twenty years. In Struges v. Bridgman, the defendant used noisy machines for more than 20 years. The plaintiff was disturbed by this only after he constructed a consulting room on his land near the defendant’s premises. It was held that the defendant had not acquired a perspective right yo cause a nuisance. On the expiry of period of 20 years, the nuisance becomes legalized void ab initio as if it had been authorized by the grant of the owner of serviced land from the beginning.
2. Statutory Authority
An act done under the authority of a statute is a complete defence. If nuisance is necessarily incidental to what has been authorized by a statute, there is no liability under the law of torts. The defence of statutory authority in tort extends not only to the activities authorized by the statute but to all the inevitable consequences of that act. For instance, if there is a railway line near your houses and the noises of the train passing disturbs then you have no remedy because the construction and the use of the railway line are authorized under a statute. However, this does not give the authorities the license to do what they want unnecessarily; they must act reasonably. It is for this reason that we see that guidelines need to be followed during the construction of public transport facilities.
Ineffectual Defences
1. Nuisance due to acts of others
When the act of two or more persons, acting independently of each other, may results in 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.
2. Public Goods
It is no defence to say what type of nuisance is beneficial for public in general otherwise no action can be brought for the people that violates the rights of individual.
In Adams v. Ursell, an injunction was issued preventing the continuance of a fried fish shop in the residential part of a street although, as alleged, the injunction would be mean a great hardship to the defendant and his poor customers.
3. Reasonable Care
Use of reasonable care to prevent nuisance is not considered as a defence.
In Rapier v. London Tramways Co., the defendants constructed stables for the accommodation of 200 horses and possible care was taken by the defendants but the nuisance was created due to stench and defendants were held liable.
4. Plaintiff coming to Nuisance
No defence can be pleaded by the plaintiff when he himself came to the place of nuisance. A person cannot expected to get any compensation from the place of nuisance when he himself go there. The maxim “volenti non fit injuria” cannot be applied in this case.
Conclusion
The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and though a plethora of judgements. The concept of nuisance is one that arises most commonly in a man’s daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved party goes back uncompensated nor the defendants is punished unnecessarily. Indian courts have borrowed some principles related to matter of tort from the decisions and judgements of the English Law. This also ensures the common law system along with creating the new provisions and rules. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.
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