Nuisance

Author: Manan Agrawal

NUISANCE[1] 

The word “nuisance” is derived from the French word “nuire”, which means “to hurt, or to annoy”. The Latin term for nuisance is “nocere” which means “to cause harm”. Annoyance can be from a variety of intangible things such as sight, smell, noise, etc. In other words, a nuisance is an act of indirect interference to the enjoyment of one’s property by causing any kind of discomfort. The Law of Tort recognizes Nuisance as an offence for which the aggrieved party can approach the Court for relief.

DEFINITIONS –

Various Jurists and scholars have defined Nuisance in the following ways-

Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to trespass.”

As per Salmond, “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, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals”.

Bermingham says that, “nuisance in an unlawful interference with a person’s use and enjoyment of land, or of some right over, or in connection with it”.

ESSENTIAL ELEMENTS OF NUISANCE –

To constitute Nuisance as an actionable tort, it is essential that there exist:

•  A wrongful act.
•  Such act have resulted in the interference with the use or enjoyment of land, or some right over, or in connection with the land;
• Because of the interference there must be damage or loss or inconvenience or annoyance caused to another.

Inconvenience must be what law considers as substantial or material in nature. Mere sensitive personal discomfort does not amount to a Nuisance. The essence of the tort is undue interference with the use or enjoyment of land.

To make things more clear let’s understand these essential elements through some examples:

1. Mr. A starts a cement factory on his own land. Loud noises and dust from the factory disturbs his neighbor Mr. B and pollutes his surroundings. Here, Mr. A commits a nuisance by disturbing Mr. B’s right to enjoy his property and surroundings peacefully.

2. Mr. X takes his herd of cattle through the main road thereby obstructing the passage of people passing by. Mr. X  has created a Nuisance for the people on the road by blocking their way. Also, the main road is not meant for animals but vehicles.

IMPORTANT CASE LAWS –

In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978, the plaintiffs’-appellants sued the defendants-respondents and asked for a permanent injunction to restrain them from exhibiting the film “Jai Santoshi Maa”. It was contended that the exhibition of the film was a nuisance because the plaintiff’s religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were portrayed as jealous women and were ridiculed in the film. It was held that hurting religious feelings was not an actionable wrong. Moreover, the plaintiffs were free and not compelled to watch the movie.

In Halsey v. Esso Petroleum Co. Ltd. , AIR 196A, the defendant’s depot dealt with fuel oil. Acid smuts containing sulphate were emitted from the chimneys and were visible falling outside the plaintiff’s house. There was proof that the smuts had damaged clothes hung out to dry in the garden of the plaintiff’s house and also paintwork of the plaintiff’s car which he kept on the highway outside the door of his house. The depot emanated a pungent and nauseating smell of oil which went beyond a background smell and was enough to affect a sensitive person but the plaintiff had not suffered any injury in health from the smell. During the night time, the noise from the boilers was at its peak and caused windows and doors in the plaintiff’s house to vibrate and affected the plaintiff’s sleep. An action was brought by the plaintiff for a nuisance.

The defendants were held liable in respect of emission of acid smuts, noise and smell.

KINDS OF NUISANCE –

Nuisance is of two kinds-

1. Public Nuisance

It is defined under section 3 (48) of the General Clauses Act, 1897 as,

“Public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. In other words, 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. Putting it simply, 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. Thus acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered a public nuisance.”

It comes under the domain of criminal acts under the Indian Law and does not allow civil action. Section 268 of the Indian Penal Code, defines a public nuisance as “an act or illegal omission which causes any common injury, danger or annoyance, to the people in general who dwell, or occupy the property, in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

To constitute a Public Nuisance-

1. The plaintiff must show a particular injury to himself beyond that which is suffered by the rest of the public i.e. he must show that he has suffered some damage more than what the general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

• In Solatu v. De Held (1851), the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.

• In Attorney General v. P.Y.A. Quarries, (1957), In action at the instance of the Attorney General, it was held that the nuisance from vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that injunction was rightly granted against the quarry owners restraining them from carrying on their operations.

2.  Private Nuisance

A  nuisance interferes with the right of a specific person, individual or entity, it is considered a private nuisance. Private nuisance lawsuits generally arise between neighbors, with one property owner being negatively affected by the acts of his/her neighbor. It gives the affected person a claim of “Right in Personam”.  Example – When a  neighbor regularly plays his music at a very high volume during late night. The act becomes a private nuisance and a civil action may lie for damages or an injunction or both.

DEFENCES TO NUISANCE –

1.  Prescription-

A prescription is a title acquired by use and time and is allowed by law. A person claims any property because his ancestors have had the possession of it for the period prescribed by law. This is mentioned under Section 26 of the Limitation Act & Section 15 of the Easements Act.

If a nuisance has been peacefully and openly being going on without any kind of interruption for twenty years then the defence of prescription is available to the party. On the expiration of this period, the nuisance becomes legalized ab-initio. The time period of twenty years starts from the day when the nuisance began.

The easement can be acquired only against specific property, not against the entire world.

• In Elliotson v. Feetham (1835) it was held that a prescriptive right to the exercise of a noisome trade on a particular spot may be established by showing twenty years used by the defendant.

• In Goldsmid v. Turubridge Wells Improvement Commissioners (1865) LR 1 Eq 161, it was held that no prescriptive right could be obtained to discharge sewage into a stream passing through the plaintiff’s land and feeding a lake therein perceptibly increasing the quantity.

• In Sturges v. Bridgman (1879), A had used certain heavy machinery for his business for more than 20 years. B, a physician neighbor, constructed a consulting room adjoining A’s house only shortly before the present action and then found himself seriously inconvenienced by the noise of A’s machinery. B brought an action against A for abatement of the nuisance. B succeeded. The court held that A cannot plead prescription since time runs not from the date when the cause of the nuisance began but from the day when the nuisance began.

2. Statutory Authority –

Where a statute backs a particular act or the use of land in a particular way, all remedies whether by way of indictment or action, are taken away; provided that every reasonable precaution consistent with the exercise of the statutory powers has been taken. Statutory authority may be either absolute or conditional.

In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily cause a nuisance or any other form of injury.

In the case of conditional authority, the State allows the act to be done only if it can be without causing nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due regard for private rights.

In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, the defendants who had authority by statute to locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.  

REMEDIES FOR NUISANCE –

The remedies available for nuisance are as follows:

1. Injunction- Temporary injunction is granted on an interim basis which might get reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction.

2. Damages- The damages offered to the aggrieved party can be nominal, statutory, or exemplary damages. Nominal damages are granted in recognition of the harm that has been caused to the plaintiff. Statutory damages are decided by the statute specifically independent of the harm caused to the plaintiff. The purpose of Exemplary damages is to punish the wrongdoer and make him repent his actions.

3. Abatement- The summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings.

CONCLUSION –

The law of nuisance is mostly uncodified. Over the years it has developed through the interpretation of different laws and precedents delivered by the judiciary in its various judgments. The decision in cases concerning nuisance is delivered on a case to case basis. Indian Judiciary has borrowed quite intensively from the English principles and from the common law system along with their own precedents. 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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