The word ‘nuisance’ has originated from the Latin word ‘nocere’ or ‘nocumentum’ and French word ‘nuire’ which in the legal sense means ‘annoyance’ or ‘harm’. The element of illegal ‘annoyance’ is the only thing common to all nuisances. One has to endure some degree of noise, dust, smell, fume, the escape of effluent etc., otherwise, life would not move in the modern world. In general terms nuisance is an act or omission interfering with the right of another to enjoy some property causing damage or physical discomfort.
Winfield – ‘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’.
Pollock – ‘Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment his property in some cases in the exercise of a common right’.
Essentials of nuisance
- Right to use or enjoyment of land
- A person having actual possession of the property only is entitled to bring a case against the defendant.
- The guest of an occupier cannot file a suit.
- Through the noise, smoke, pollution etc.
- Causing physical damage to land or something upon it. For example, setting of machine and vibration.
- Causing inconvenience, discomfort or annoyance by smell or noxious fumes.
- Interference must be unreasonable
- The person can sue anyone only if there is a genuine reason. For example, radio at a low volume is not causing any sort of disturbance and hence, the claimant cannot sue the defendant for this.
- Actual damage has to be proved
Kinds of nuisance
- Public nuisance
It is an act or omission causing harm or damage or annoyance to the public at large and people in general. A public nuisance is both crime and tort. For example, to block the public highway which stops the movement for a number of people.
In Soltan v. De Held, De Held was the priest of a Roman Catholic Chapel. The bell disturbed everyone living near the chapel. The plaintiff was disturbed most.
The court held that it was a public nuisance and as far as the plaintiff was concerned, a private nuisance, and the plaintiff was held entitled to an injunction. Normally, for public nuisance, only one person cannot file a suit. But, in some cases, only one individual can also file suit for public nuisance.
Public nuisance when actionable by a private person
- Specific damage
It means that the person has suffered a particular injury himself beyond that suffered by the rest of the public.
- The injury must be substantial
It means that such injury has to be of real importance or value. The damage must be particular, direct, and substantial.
- The injury must be direct and not merely consequential
Direct injury means an injury that may be foreseen by the defendant as probable in the sense that the plaintiff is likely to suffer additional and particular injury.
- Private nuisance
If the nuisances cause injury or damage to an individual or group of the individual, it is called a private nuisance. Private nuisance includes wrongful escape of toxic gas, noise, water, smoke, filth, and germs.
- Unlawful and unreasonable interference
There are some unwarranted interferences which cause harm or damage to the plaintiff and such interferences are called undue or unreasonable. Undue or unreasonable interference refers to that which surpasses the limited usage in the society. If someone is erecting/constructing a building and in doing so it creates too much noise and dust, here, the action may lie. The interference should be continuous or repetitive
The plaintiff has to prove some actual damage or harm that he suffered. In Dr. Ram Raj Singh v. Babu Lal, the defendant installed a brick grinding machine. The plaintiff had a clinic in that area. Due to brick-grinding, the air in the locality was polluted, dust particle, red in colour was all visible on clothes. The plaintiff got special damage as proved in the Court and the Court also granted a permanent injunction restraining the defendant from running his brick grinding machine there. The suitable remedy was provided under Section 268 of the Indian Penal Code along with Sections 133 to 143 of the Criminal Code.
- Damage caused to property
If the property gets damaged due to unlawful interference, then it is actionable as a nuisance.
In St. Helen’s Smelting Co. v. Tipping, fumes were emitted from the defendant’s factory which damaged the plaintiff’s tree and plants. The court held the defendants liable as they were causing damage to the plaintiff’s property.
Defence of nuisance
Prescription can legalize a nuisance. Prescription is a special defence and the right to continue a private nuisance may be acquired as an easement by prescription. A person can acquire a right to commit a private nuisance as an easement provided it has been enjoyed as an easement peacefully and openly. At the same time, it was continued for 20 years without interruption. After the expiry of 20 years, the nuisance becomes legalized as if it has been authorized by a grant of the owner of servient land from the beginning. In the case of Sturges v. Bridgemen, the defendant was a confectioner and had a kitchen in the back of his house. The plaintiff did not feel any noise and vibration from the kitchen for over 20 years. After 20 years, the plaintiff, who was a medical practitioner shifted his consulting room in the back garden of his house. After this shifting, the plaintiff felt the nuisance caused by the kitchen’s noise and vibration. The plaintiff brought the suit and the Court granted an injunction against the confectioner. Defendant’s claim of prescriptive right failed because the interference had not been an actionable nuisance for the preceding period of more than 20 years.
- Statutory authority
A suit for nuisance is not maintainable if the defendant’s act is authorized by law or statute. If a statute has authorized to do a particular act, all remedies, whether by way of indictment or action, are taken away, provided that every reasonable precaution consistent with the exercise of the statutory power has been taken. The liability for nuisance cannot be avoided where the act authorized by the statute has been done negligently. For example, we cannot file a case against the Indian railway because the train creates noise as well as releases smoke.
In London Brighton and South Coast Rail Co. v. Tunnan, the court said “It cannot now be doubted that a railway company constituted for the purpose of carrying passengers, or goods, or cattle, are protected in the use of the functions with which Parliament has entrusted them if the use they make of those functions necessarily involves the creation of what would otherwise be a nuisance at Common Law”.
- Winfield on Tort, 7th ed. p. 193