DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

TORT OF PRIVATE NUISANCE

SUBJECT

LAW OF TORTS

NAME OF THE FACULTY

DR.P. SRIDEVI

Name of the Candidate SUSMITA TRIPATHY

Roll No. 2017096
Semester 1
 Acknowledgement

I would sincerely like to put forward my heartfelt appreciation to our respected professor, Prof.
Sridevi for giving me a golden opportunity to take up the project regarding “Tort of private
nuisance”. I have tried my best to collect information about the project in various possible ways
to depict clear picture about the given project topic.
 RESEARCH METHODOLOGY

This project is purely Doctrinal and based on primary and secondary sources such as websites,
books, journals and internet sources. The referencing style followed in this project is OSCOLAR
19th Edition's format of citation. This Research process deals with collecting and analyzing
information to answer questions. The Research is purely descriptive in its boundaries of the topic
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ABSTRACT

Nuisance:-

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to
annoy”.

Nuisance as a tort means an unlawful interference with a persons use or enjoyment of land, or
some right over, or in connection with it.

Kinds of nuisance:-

1. Public or common nuisance

2. Private nuisance
Public nuisance:-

public nuisance is interference with the right of public in general and is punishable as an offence.
public nuisance is crime whereas private nuisance is a civil wrong. Obstructing a highway or
creating a condition to make travel unsafe or highly disagreeable are examples of nuisances
threatening the public convenience.

Private nuisance:-

A private nuisance is an interference with a person's enjoyment and use of his

land.examples of nuisances interfering with the comfort, convenience, or health of an occupant a
refoul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures.

Defences:-

A number of defences have been pleaded in an action for nuisance.some of the defences have been
recognized by courts as valid defences like prescriptive right to commit nuisance ,statutory
authority and some other have been rejected like nuisance due to acts of others, public
good,reasonable care,plaintiff coming to nuisance.

Remedies:- Injunction, damages, abatement.

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CONTENTS

1. Introduction……………………………………………………………………….......6
2. Essentials to constitute nuisance……………………………………………………..8
3. Kinds of Nuisance…………………………………………………………………….8
4. Public nuisance……………………………………………………………………….8
5. Private nuisance………………………………………………………………………9

a. Unreasonable interference…………………………………………………………9

b. Interference with use or enjoyment of land……………………………………….12

c. Damage……………………………………………………………………………13
6. Defences……………………………………………………………………………..15
a. Effectual defences……………………………………………………………….16
b. Ineffectual defences……………………………………………………………..16
7. Remedies in nuisance………………………………………………………………17
8. Conclusion………………………………………………………………………….19
9. Bibliography………………………………………………………………………...20

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INTRODUCTION:

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
examples of it. The interference maybe anyway, e.g. noise, vibrations, heat, smoke, smell, fumes,
water, gas, electricity, excavation or disease producing germs.

In nuisance, interference is consequential. For example, when a person plants a tree over his own
land and the roots or branches project into or over the land of another person, that is nuisance.
Other examples include to throw stones upon one’s neighbour’s premises is wrong of nuisance.

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 property but visible to others and
affecting the view of and becoming an eyesore for others, could not be said to be unreasonable.

During 19th and 20th century, due to competing properties posing nuisance to each other and cost
of litigation, it became difficult to administer the law of nuisance. Nowadays, most jurisdictions
have a system of land planning which helps in determining which activities are suitable in a given
location.

Literal Meaning and other definitions:-

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to
annoy”.

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

According to Blackstone, nuisance is “ A species of real injuries to a man’s lands and tenements
which may be defined as anything done to the hurt or annoyance of the lands, tenements, or

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hereditaments of another’’. The definition itself covers the variety of wrongs occurring under
nuisance.

Under the common law, land owners or lease holders etc who possess the real property have a
right to enjoy their property to the fullest. Though this does not include those people who have no
interest in the property of the owner or who is a visitor to such property. If an individual or a
neighbor interferes with the quiet enjoyment of the land by owner, either by making sound or
pollution or any other type of interference, then the owner of such property who has been affected
by such interference, have the right to claim a remedy under the law of nuisance. In legal terms,
the concept of nuisance is used in three ways :-

- Any activity that affect others. For example – a smoking chimney or an indecent conduct.
-Activities like making loud noises which effects the peaceful enjoyment of the land by an
individual.

- A legal liability arising out of the combination of the above two points.

Justice Weaver explained the meaning of nuisance as :- A nuisance is a condition and not an act
or failure to act on the part of the person responsible for the condition. If the wrongful condition
exists and the person charged there with is responsible for its existence, he is liable for the resulting
damages. So, the existence of nuisance in a situation is not measured by its effect but by the
condition which exists at that time. Generally, nuisance refers to the interference with the
enjoyment of the land by another but where a substantial interference occurs, an action can be
taken without considering what caused the annoyance.

According to Winfield, the term nuisance means, ‘’ an unlawful interference with a person’s use
or enjoyment of land, or some right over, or in connection with it.’’

Further in terms of the acts which can be called as nuisance are – noise, vibrations heat, smoke,
smell, fumes, water, gas , electricity, excavation or disease producing germs.

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ESSENTIALS TO CONSTITUTE NUISANCE:-

The presence of nuisance in each case depends upon the facts and circumstances of it. So, there is
no specific rule which determines the presence of nuisance in a given situation. Under the common
law, the essentials which constitute nuisance are –

-That a defendant committed an activity or action

- That in furtherance of that action, an injury is caused to the interest of the plaintiff.

Generally, following are the elements which should be established to constitute nuisance :-

- Unreasonableness caused by the defendant to another,

- The continuance of acts of nuisance for an unreasonable period,

- Proximate relation or connection between the defendant and nuisance complained of, and

- Existence of damage or injury1

KINDS OF NUISANCE

Nuisance is of two kinds

1) PUBLIC OR COMMON NUISANCE:-

DEFINITION:-

An act committed by a person which is not warranted by any law or where he refuses to obey a
legal duty imposed upon him, where the effect of such an act will amount to endanger the life,
health or property of public, the person committing such an act will be considered guilty of public
nuisance.

The examples regarding public nuisance can be mentioned as follows:-

a. Causing obstruction in highway.

b. Causing blast in the close built-up areas.

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http://www.legalservicesindia.com/article

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c. By letting a land to be used as a dump, which results in creating a dangerous

environment.
d. Making fake emergency calls
e. participating in drug or gang activities in urban areas

PRIVATE NUISANCE OR TORT OF NUISANCE:

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

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

1. UNREASONABLE INTERFERENCE

Interference may cause damage to the plaintiff’s property or may cause personal discomfort
to the plaintiff in the enjoyment of property. Every interference is not a nuisance. To
constitute nuisance, the interference should be unreasonable. Every person must put up with
some noise, some vibrations, some smell, etc. so that members of the society can enjoy their
own rights.

A balance has to be maintained 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. If the interference is
unreasonable, it is no defence to say that it was for the public good. What interference is
unreasonable varies according to different localities.

As stated by Thesiger, in Sturges v. Bridgman, “what would be a nuisance in Belgrade

Square would not necessarily be so in Bremondsey.” For the purposeof 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.” An unreasonable activity cannot be excused on the
ground that reasonable care had been taken to prevent it from becoming a nuisance.

CASE LAWS

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Radhey Shyam v. Gur Prasad

In Radhey Shyam v. Gur Prasad, 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.

Shanmughavel chettiar v. Sri ramkumar ginning firm

In Shanmughavel Chettiar v. Sri Ramkumar Ginning Firm, the firm (respondent)

constructed a building to locate Ginning Factory there, after obtaining licence therefor from
the Panchayat Union. The plaintiff had invested large funds and had also made elaborate
arrangement to start the Ginning factory. Thereafter, the defendants (appellants) were also
granted a licence to start a brick kiln on the adjacent land. The plaintiff filed a suit for
injunction restraining the defendants from starting a brick kiln there, contending that the
fumes from the proposed brick kiln would spoil the quality of cotton in the Ginning Factory
and that during the windy season, sparks from the brick kiln were likely to cause outbreak of
fire in the cotton godown and the factory. It was held that the erection of the proposed brick
kiln at that place would amount to actionable nuisance and therefore, the plaintiff had a right
to resist the erection of the brick kiln there. It was also held that according of the permission
by the municipality to the defendants to start the brick kiln could not prevent the plaintiff
from obtaining an injunction for the abatement of the likely nuisance.2

J. Chandrasekharan v. V. D. Kesavan

In J. Chandrasekharan v. V. D. Kesavan, the defendant fixed electric meters on the wall of

the plaintiff, who had acquiesced to it. Holding the fixtures necessarily amounting to

2
Dr.R.k. Bangia law of torts,23 rd edition,pg no-183

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nuisance, Madras High Court said any length of period of such use by the defendant, would
not ensure to benefit of user concerned unless specifically law enabled him to do so.

Ushaben v. Bhagya Laxmi Chitra Mandir

In Ushaben v. Bhagya Laxmi Chitra Mandir, 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 feelings 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.

Sensitive Plaintiff:-

An act which is otherwise reasonable does not become unreasonable and actionable when the
damage, even though substantial, is caused due to sensitiveness of the plaintiff or the use to which
he puts his property. If certain kinds of traffic are no nuisance for a healthy man, it will not entitle
a sick man to bring an action if he suffers thereby, even though the damage be substantial. If some
noise 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 this plaintiff.

CASE LAWS

Robertson v. Kilbert

In Robertson v. Kilbert, 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 neighbor doing something lawful on his
own property, if it is something which would not injure anything but an exceptionally delicate
trade.”

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Heath v. Mayor of Brighton

In Heath v. Mayor of Brighton, the court refused to grant injunction in favour of the incumbent
and trustees of a Brighton Church to restrain a buzzing noise from the defendant’s power station.
It was found in this case that the noise did not cause annoyance to any other person but the
incumbent, nor was the noise such as could distract the attention of ordinary persons attending the
church.

INTERFERENCE WITH THE USE OF ENJOYMENT OF LAND:-

Interference may cause either

I. Injury to the property itself

II. Injury to comfort or health

1.Injury to the property:-

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

It should be proved that the damage occurred is substantial in nature and what amounts substantial
interference depends upon the facts and circumstances of each case. In this case, the defendant’s
action resulted in actionable nuisance under law. Here the defendant cannot take the defense that
he took all measures to prevent such nuisance.

St.Helens smelting co. v tipping:-

In this case, fumes from the defendant companys works damaged plaintiffs trees and shrubs.Such
damage being an injury to property, it was held that the defendants were liable.

Right to Light and Air:-

In India the right to light and air is acquired by an easement. “Where the access and use of light or
air to and for any building have without interruption and for twenty years and where any way of
the use of any water or any other easement has been peaceably and openly enjoyed by any person
claiming title thereto as an easement and as of right without interruption for twenty years, that right
to such access and use of light or air, way, watercourse, use of water or other easement shall be
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absolute and indefeasible. Each of the said periods of twenty years before the institution of the suit
wherein the claim to which such period relates is contested.” The prescriptive right of easement of
access and use of light and air can be acquired if the light has been peaceably enjoyed, as of right,
without interruption and for 20 years. If a person has enjoyed some right for 20 years, he does not
become entitled to get all light. It is only when there is any appreciable diminution of light which
has been enjoyed for 20 years that constitute a right of action and gives to a proprietor of a tenement
that had this enjoyment, a right to prevent his neighbor’s building on his own land. The action
there for does not depends on the fact that the plaintiff has less light than before but that there is
substantial interference with comfortable or profitable use of his premises, according to the
ordinary notion of mankind. The nature of locality has to be taken in to account and the proper test
to see the requirement of people who stay in that locality, because an interference which would be
substantial to the residence of an open area may not be so to person residing in congested area.
Even in a noisy locality, creation of more than average noise is nuisance.

2.Injury to comfort or health:-

Substansial interference with the comfort and convenience in using the premises is actionable as a
nuisance.the rule is De minimis non curat lex that means that the law does not take account of
very trifling matters.there should be a serious inconvenienced and interference with the comfort.

Disturbance to neighbours throughout the night by noises of horses in a building which was
converted into a stable was a nuisance. Similarly collection of noisy and disorderly people outside
a building in which entertainment by music and fireworks have been arranged for profit are
instances of nuisance.

DAMAGE:-

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.

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In Fay v prentice a cornice of defendants house projected over the plaintiffs garden. It was held
that the mere fact that the cornice projected over the plaintiffs garden raises a presumption of rain
fall of rain water into and damage to the garden and the same need not be proved

Nuisance on highways:-

Obstructing a highway or creating dangers on it or in its close proximity is a nuisance. The

obstruction must however be unreasonable. thus to cause the formation of queues without
completely blocking the public passage is a nuisance.

CASE LAWS

Ware v Garston Haulage co. ltd

In Ware v Garston Haulage co. ltd, the defendant left his lorry with an attached trailer by side
of the highway. the trailer had no rear light in night and plaintiff riding on his motor cycle ran into
the back of the trailer. It was held that the defendant was liable as his leaving the vehicle in
darkness on the highway was dangerous obstruction on highway

Dwyer v Mansfield

In Dwyer v Mansfield, during acute scarcity of potapoes, long queues were formed outside the
defendants shop who having licence to sell the fruit and vegetables .the queues extended on
highways and cause obstruction to neighbouring shops. It was held that the defendant was not
liable as his act was unreasonable because he was conducting his business in normal way during
the scarcity of potatoes.

Leanse v Egerton

In Leanse v Egerton, the window panes of a building belonging to the defendant, which was side
of the highway,had been broken .the plaintiff was injured by the glass falling from the
window.Although the owner had no actual knowledge of the state of his premises, he was held
liable to the plaintiff.

Interference with Tangible rights and Intangible rights:-

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There is an immense difference between tangible rights and intangible rights. Lord Westbury
distinguished between a nuisance that produces what he called material injury to property
discomfort. He held that material damage to property can never arise from a reasonable use of
property that it will always amount of a nuisance. He said that where intangible damage concerned
the degree of interference it has to be measured against all the surrounding circumstances such as
nature of the locality. In addition, where the Plaintiff complains about interference with use and
enjoyment of land the courts will use balancing exercise to determine whether the defendants
conduct was reasonable or not. With physical damage such matters are irrelevant as the occupier
is protected from physical damage no matter where he lives. In addition where the Plaintiff
complains about the interference with use and enjoyment of land in that physical damage has
occurred the courts do not determine whether it is reasonable unless Defendant's use of land is
abnormally sensitive.

The outcome of the distinction is that physical damage is more of a serious from of injury than a
mere discomfort. In other words, actual damage to land is worse than damage to people's subjective
interest in it. Also Interference that results in physical damage is more likely to be regarded more
unreasonable than a less tangible harm such as loss of amenity (inability to sleep, sickness).

This usually requires the courts to engage in a more intricate balancing exercise taking into account
a number of factors deciding whether an alleged interference is a nuisance. Courts are more willing
to find an actionable nuisance where physical damage is evident than where an intangible damage
is alleged.3

DEFENCES:-

In the beginning, under Common law, there existed only one kind of remedy for an act of nuisance
which is in the form of damages. But with the change in time and with the development in the
courts of equity, injunction came into picture which is provided to the plaintiff against the
defendant for stopping him from repeating an act which has caused nuisance. A level of

3
.https://www.scribd.com/search?page=1&content_type=tops&query=nuisance%20to%20tangible%20and%20inta
ngible

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punishment was also introduced, which was given to the defendant if he refuses to comply with
the injunction order against him.

A number of defences have been pleaded in an action have been been pleaded in an action for
nuisance.

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.If a

person has continued with an activity on the land of another person for 20 years or more,he acquires
a legal right by prescription to continue therewith in future also

2. Statutory Authority:-

An act done under the authority of a statute is a complete defence.If nuisance is necessarily
incident to what has been authorized by statute,there is no liability for that under the law of torts.

Thus a railway company authorized to run trains on track is not liable if,inspite of due care, the
sparks from the engine set fire to the adjoining property.

INEFFECTUAL DEFENCES:-

1. Nuisance due to acts of others:-

Sometimes the act of two or more persons,acting independently of each other, may cause nuisance
although the act of anyone of them alone would not be so.An action can be brought against anyone
of them and it is no defence that the act of the defendant alone would not be a nuisance

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2. Public Good:-

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

3. Reasonable care:-

Use of reasonable care to prevent nuisance is generally no defence. In Rapie v London tramways
co. considerable stench amounting to nuisance was caused from defendants 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

REMEDIES FOR NUISANCE:_

The remedies available for nuisance are as follows :-

Injunction-

It maybe a temporary injunction which is granted on an interim basis and that maybe reversed or
confirmed. If it’s confirmed, it takes the form of a permanent injunction. However the granting
of an injunction is again the discretion of the Court

· Damages-

The damages offered to the aggrieved party could be nominal damages i.e. damages just to
recognize that technically some harm has been caused to plaintiff or statutory damages i.e. where
the amount of damages is as decided by the statute and not dependent on the harm suffered by the
plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating
the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.

4
.Dr R.K.Bangia,law of torts,23rd edition,pg no-192

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· Abatement-

It means the summary remedy or removal of a nuisance by the party injured without having
recourse to legal proceedings. It is not a remedy which the law favors and is not usually advisable.
E.g. - The plaintiff himself cuts off the branch of tree of the defendant which hangs over his
premises and causes nuisance to him.5

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www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html

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CONCLUSION

The law related to nuisance is generally uncodified. But it has increased its scope through

judgments and interpretations. The concept of nuisance generally occurs in a person’s day to day
life and the decision is made on the basis of facts and circumstances. It also becomes the duty of
the court to compensate the aggrieved plaintiff and make sure that the defendant does not get

punished unfairly.6

The courts of India have borrowed from the principles of English and also from the

decisions of the common law system in the matters regarding the law of nuisance. This

has also resulted to the Indian courts in developing their own precedents. And this

resulted in developing a sound system of law which promises quality and well being for

everyone. i.e. the society and the parties in a large scale.7

In the concept of private nuisance, the plaintiff usually seek for the remedy of injunction against
the defendant instead of damages. The reason behind seeking directly the injunction refers to the
granting him a chance to go back straightly in the enjoyment of peaceful and free environment of
his property which was available to him before the defendant showed his non-acceptable behavior.

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2 http://www.lawteacher.net/free-law-essays/land-law/private-nuisance.php
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http://www.publishresearch.com/download/857

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BIBLIOGRAPHY

BOOKS

1. Dr. R.K. Bangia , The law of Torts

2. Ramaswamy Iyer, The law of Torts
3. Dr. J.N.Pandey, Law of Torts

WEBSITES

www.lawteacher.net

www.indiankanoon.com

www.publicresearch.com

www.legalservicesindia.com

www.lawcommission.justice.gov.uk

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