NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SUBJECT – LAW OF TORTS

TOPIC – PRIVATE NUISANCE

SUBMITTED TO – ASSOCIATE PROFESSOR KAVITA SINGH

SUBMITTED BY – KSHITIZ
ROLL NO. – 2017BALLB81
I TRIMESTER
 ACKNOWLEDGEMENT

I take this opportunity to thank everyone who contributed, directly or indirectly, to the
completion of this project. I am highly indebted to our Law of Torts professor, Kavita Singh, for
her guidance and for providing necessary information regarding the project.
Next, I would like to express my gratitude towards National Law Institute University’s library,
without the help of which it wouldn’t have been possible.
Lastly, I would like to acknowledge the endless support of my colleagues and parents.
It would not have been possible without the kind support and help of aforementioned individuals
and organizations. I would like to extend my sincere thanks to all of them.
OBJECTIVES

 To understand and explain the concept of private nuisance.

 To accumulate a deeper understanding of private nuisance through in-depth study of its

various aspects.

 To study the development of nuisance and emergence of private nuisance from it.

 To examine the scenario of private nuisance with the help of case laws concerning its
various aspects.

 To produce distinction between private nuisance and public nuisance.

INTRODUCTION

MEANING OF NUISANCE

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.1
The interference may be in any way,e.g.,noise, vibrations, heat, smoke, fumes, smell, water, gas,
electricity, or disease producing germs.

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

‘That which annoys and disturbs one in possession of his property, rendering its ordinary use or
occupation physically uncomfortable to him.’2

According to Blackstone - “Nuisance is something that worketh hurt, inconvenient or damage”

Example: To be a nuisance, the level of interference must rise above the merely aesthetic. If your
neighbor paints their house red, it may offend you; however, it doesn't rise to the level of
nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be
restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it
is an expected part of quiet enjoyment of property and does not constitute a nuisance.

TYPES OF NUISANCE

1. Public or common nuisance

2. Private nuisance, or tort of nuisance
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1
Winfield, Percy in Winfield on Torts, Nuisance, 7th edition pg.193
2
Black, Henry in Black’s Law Dictionary, 1951, 4th edition

DEFINITIONS

Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is
interference with the right of public in general and is punishable as an offence.
For example: Obstructing a public way by digging a trench , or constructing structures on it.

Private nuisance is a civil wrong that affects a single individual or a definite number of persons
in the enjoyment of some private right which is not common to the public. In other words, a
private nuisance is a substantial and unreasonable interference with the private use and
enjoyment of one’s land.
Examples include interference with the physical condition of the land, disturbing the comfort of
its occupants, or threatening future injury or disturbance.

A COMPARISON BETWEEN PRIVATE NUISANCE AND PUBLIC NUISANCE

A private nuisance is a civil wrong that affects a single individual or a definite number of
persons in the enjoyment of some private right which is not common to the public. In other
words, a private nuisance is a substantial and unreasonable interference with the private use and
enjoyment of one’s land.
Examples include interference with the physical condition of the land, disturbing the comfort of
its occupants, or threatening future injury or disturbance. The origin of private nuisance liability
is purely tortious in character and not criminal.
 It is to be noted that a private nuisance exists only where one is injured in relation to a right
that s/he enjoys by reason of his/her ownership of an interest in land. Private nuisance includes
all injuries to an owner or occupier in the enjoyment of the property of which s/he is in
possession, without regard to the quality of the tenure. However, a nuisance may be a public and
a private one at the same time.
 An example of public nuisance would be someone blocking off a public road. This action
would have an effect on a wide range of people, each of whom would be affected or
disadvantaged to differing degrees. For an individual to have an action for compensation for the
inconvenience or interference suffered, they would have to show that the impact was such as to
cause them special damage. That is, they must show that the impact on them was greater than
that on the general public.
 In the example above, to have any sort of action for compensation for nuisance you would
have to show that you needed to use that particular road to go to work each day and that the
action of blocking it caused you particular problems in getting to work, or a similar sort of
inconvenience. It would not be enough to say to a court that you had suffered a minor
inconvenience or could no longer have your usual Sunday drive because the road was blocked.
The inconvenience or interference must not be trivial or inconsequential, or lacking in good
reason for it occurring or continuing to occur.

HISTORICAL DEVELOPMENT

The term nuisance first emerged in the thirteenth century and referred to actions that took
place on the land of the defendant, but interfered with the rights of the plaintiff. A writ of
nuisance could be obtained to take action against the defendant. This action gave rise to the
modern day private nuisance, and eventually public nuisance, which was any crime that was
committed against the crown.

In the late 19th and early 20th centuries, it is difficult to administer the law of nuisance, as
competing property uses often posed a nuisance to each other, and the cost of litigation to settle
the issue grew prohibitive. Most of the country has their owned system of land in planning
the use of plan for example zoning, that describes what activities are acceptable and appropriate
in a certain location.
Zoning generally overrules nuisance. For instances, some country uses and industrial zone
specifically for a factory to be operated. This industrial zone have their own law and rules
where if the factory was operating in the industrial zone, the neighborhood which lives near the
industrial zone can't make claim to the court for nuisance.. Jurisdictions without zoning laws
essentially leave land use to be determined by the laws concerning nuisance.

In the same way, there is an adaptation of the doctrine of nuisance to modern complex societies
in modern environmental laws are , for example person's use of his property may harmfully
affect another's property, or person, far from the nuisance activity and not easily incorporated
into historic understandings of the nature of nuisance law.

At this point in time the term was very widely used and vague in its meaning; any type of
wrongdoing was often termed nuisance. In modern tort law there are different types of
nuisances: public, private, and absolute nuisances. A private nuisance effects one individual’s
enjoyment of his land, while a public nuisance affects a larger amount of citizens or the public in
general. Absolute nuisances are nuisances for which the defendant is strictly liable.
PRIVATE NUISANCE

An act which gives rise to unlawful, unwarranted or unreasonable annoyance or discomfort to

the plaintiff and which results in interference with a person’s use or enjoyment of his land.

The law recognizes that landowners, or those in rightful possession of land, have the right to the
unimpaired condition of the property and to reasonable comfort and convenience in its
occupation.
Examples of private nuisances - Nuisances that interfere with the physical condition of the land
include vibration or blasting that damages a house; destruction of crops; raising of a water
table; or the pollution of soil, a stream, or an underground water supply.
Examples of nuisances interfering with the comfort, convenience, or health of an occupant are
foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures.
Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor
who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

ESSENTIALS OF PRIVATE NUISANCE

To constitute the tort of nuisance, the following essentials are required to be proved:
1. Unreasonable interference;
2. Interference with the use or enjoyment of land;
3. Plaintiff must suffer some damage.

1. UNREASONABLE INTERFERENCE

The claimant must prove that the defendant has caused an interference with the claimants use or
enjoyment of their land. There are many ways that such interference can be caused, but what
(they have in common is that they must be unreasonable and indirect, and that they will usually
be the result of a continuing state of affairs, rather than a one-off incident. In some cases there
will be a physical invasion of the claimant’s land, such as the roots of the neighbor’s tree
spreading into the claimants land.

Concerning Cases

Davey v Harrow Corporation3

 Facts: The Plaintiff’s house was damaged by roots penetrating from trees on adjoining land.
At first instance, Sellers J found that the damage was caused by the trees, but they were not
proven to be the property of the defendants. On appeal and after further evidence it was found
that the trees had been growing for some time on the defendants land.
 Held: The defendants were liable in nuisance for damage caused by encroaching roots
whether self-sown or planted. Where a boundary hedge is delineated on an Ordnance Survey
map by a line, the line indicates the centre of the existing hedge. This accord with the practice of
the OS and courts can take notice of that practice as prima facie evidence of what a line on a map
indicates As to damage by roots: ‘once it is established that encroachment by roots is a nuisance,
it must follow that if damage is thereby caused, an action on the case will lie.’

Radhey Shyam v Gur Prasad4

 Facts: Gur Prasad brought a case before the Court and got an injection by claiming that the
flour mill , which was going to be installed in the premises by the defendant in which he resides,
will cause serious health issue and noise , so he can lose his peace on account of the rattling
noise of the floor mill. 
 Held: It was held that substantial addition to the noise in a noisy locality, by 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.

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3
(1958) 1 QB 60
4
A.I.R 1978 All. 86.

Ushaben v Bhagya Laxmi Chitra Mandir5

 Facts: The plaintiff sued the defendants 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 Goddess Saraswati, Laxmi, and
Parvati were defined as jealous and ridiculed.

 Held: The Court has decided that the film did not hurt any religious filing and not an
actionable wrong. Usha Ben if found it hurting, then she can decide not to see the film. The
balance of convenience was considered to be in the favour of the defendants and as such, there
was no nuisance.

SENSITIVE PLAINTIFF

The standard of tolerance is that of the 'normal' neighbor. Therefore, abnormally sensitive
plaintiffs are unlikely to succeed in their claims for private nuisance.
An act which is otherwise reasonable does not become unreasonable and actionable when the
damage, even though substantial, is caused solely due to sensitiveness of the plaintiff or the use
to which he puts his property.
For instance, if a certain kind of noise is 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.

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5
A.I.R. 1978 Gujarat 13.
Concerning Cases

Robinson v Kilvert6

 Facts: The defendant carried on a business of making paper boxes. This required a warm dry
atmosphere. The defendant operated from the basement of their premises and let out the ground
floor to the claimant. The claimant used the premises for storage of brown paper. The heat
generated from the defendant’s operations damaged the brown paper belonging to the claimant.
 Held: The defendant was not liable. The damage was due to the special sensitivity of the
paper.
Lopes LJ: "I think the Plaintiff cannot complain of what is being done as a nuisance. A man
who carries on an exceptionally delicate trade cannot complain because it is injured by his
neighbour doing something lawful on his property, if it is something which would not injure
anything but an exceptionally delicate trade."

Health v Mayor of Brighton7

 Facts:  The plaintiffs were trustees of a church. The defendant built an electricity sub-station
next door. The plaintiffs sought an injunction, saying that the humming sound emitted could be
heard in the church. 
 Held: The special requirements for quiet required in a church did not impose any higher
standard from neighbours as regards the special use made of land. The plaintiffs had not
established that the noise was a sufficient interference to support an injunction. 

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6
(1889) 41 Ch.D. 88 
7
(1908) 98 L.T. 718

MALICE
Malice here means a bad motive. Where a defendant acts with malice that may be relevant to the
question of reasonableness, in that it may make what would have been reasonable conduct
unreasonable.

Concerning Cases

Christie v Davey8

 Facts: The claimant was a music teacher. She gave private lessons at her home and her family
also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant’s
property. The defendant had complained of the noise on many occasions to no avail. He took to
banging on the walls and beating trays and shouting in retaliation.
 Held: The defendant’s actions were motivated by malice and therefore did constitute a
nuisance. An injunction was granted to restrain his actions.

Mayor of Bradford Corp. v Pickles9

 Facts: The plaintiffs sought an injunction to prevent the defendant interfering with the supply
of water to the city. He would have done so entirely by actions on his own land.
 Held: The plaintiffs could have no property in the water until it came on their land and they
collected it, and “if the owner of the adjoining land is in a situation in which an act of his,
lawfully done on his own land, may divert the water which would otherwise go into the
possession of this trading company, I see no reason why he should not insist on their purchasing
his interest from which this trading company desires to make profit.” The exercise of a legal
right is not an unlawful abuse of that right merely by reason of a predominant improper or
ulterior purpose.
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8
(1893) 1 Ch 316
9
(1895) A.C. 587; (1895) 64 L.J. Ch. 597
Hollywood Silver Fox Farm v Emmett10

 Facts: The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if
disturbed when pregnant they are prone to miscarry. If alarmed when they have young they may
devour them. The defendant was the claimant’s neighbour. He objected to the fox farm and fired
a gun on his own land close to the breeding pens with the intention to scare the foxes and impede
breeding. The claimant brought an action in nuisance.
 Held: The defendant was liable despite the abnormal sensitivity of the foxes because he was
motivated by malice.

INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND

Interference may cause either :

1. Injury to the property itself, or
2. Injury to comfort or health of occupants of certain property

INJURY TO PROPERTY

An unauthorized interference with the use of property of another person through some object,
tangible or intangible, which cause damage to the property, is actionable as nuisance.
It may be by allowing the branches of a tree to overhang on the land of another
person, or the escape of the roots of the tree, water, gas, smoke or fumes etc. on the
neighbors land or even by vibration.
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10
(1936) 2 K.B. 468

Concerning Cases

St Helen’s Smelting Co v Tipping11

 Facts: The claimant owned a manor house with 1300 acres of land which was situated a short
distance from the defendant’s copper smelting business. He brought a nuisance action against the
defendant in respect of damage caused by the smelting works to their crops, trees and foliage.
There were several industrial businesses in the locality including and alkali works. The defendant
argued that the use of property was reasonable given the locality and the smelting works existed
before the claimant purchased the property.
 Held: Where there is physical damage to property, the locality principle has no relevance. It
is no defence that the claimant came to the nuisance.

Bliss v Hall12

 Smells and fumes from candle making invading adjoining land. To an action of nuisance for
carrying on the business of a tallow chandler, in a messuage adjoining the messuage of the
Plaintiff, it is no plea that the Defendant was possessed of his messuage, and the business was
carried on, before the Plaintiff became possessed of and occupied the adjoining messuage.
However, a right to emit ‘noxious vapours and smells’ might be acquired by prescription.

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11
(1865) 11 H.L. Cas 642
12
(1838) 4 Bing NC 183

INJURY TO COMFORT OF THE OCCUPANTS

Substantial interference with the comfort and convenience in using the premises is actionable as
nuisance. A mere trifling or fanciful inconvenience is not enough.
There should be “a serious inconvenience and interference with the comfort of the occupiers of
the dwelling house according to notions prevalent among reasonable Englishmen and
women…”13

Concerning Cases

Colls v Home and Colonial Stores Limited14

 Facts: Home and Colonial Stores owned land at 44 Worship

Street, Shoreditch, London EC2. They proposed to erect a tall building on the site. Colls owned a
property immediately opposite number 44 and objected to the erection of the new building due to
the effect this would have on light to a clerks’ office on the ground floor of his building. He
applied for an injunction to restrain the new development. He argued that he was entitled to
an easement, under section 3 of the Prescription Act 1832, in respect of all the light currently
enjoyed by his building.

 Held: The House of Lords held that Colls was entitled to "sufficient light" to light his
premises "according to the ordinary notions of mankind". As, he would have in excess of this
amount, even after the erection of the new building, he had not suffered an actionable
interference with his easement of light.
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13
Bland v Yates, (1914), 58 Sal. 612; 36 Digest 174,199
14
(1904) A.C. 179

Polsue and Alfiery Ltd. v Rushmere15

 Facts: The plaintiff, who was living in a noisy locality, brought an action to prevent the
defendant company from installing printing machinery next door due to which the plaintiff and
his family had to remain awake at night.
 Held: Since there was serious addition to the noise already there, the court granted an
injunction against the defendants.

DAMAGE
Unlike trespass, which is actionable per se, actual damage is required to be proved in an action
for nuisance.16 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,
the law will often presume it.
Concerning Cases
Fay v Prentice17
A cornice of the defendant’s house projected over the plaintiff’s garden. It was held that the mere
fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of rain
water into and damage to the garden and the same need not be proved. It was nuisance.

Cambridge Water v Eastern Counties Leather plc18

 Facts: The defendant owned a leather tanning business. Spillages of small quantities of
solvents occurred over a long period of time which seeped through the floor of the building into
the soil below. These solvents made their way to the borehole owned by the Claimant water
company. The borehole was used for supplying water to local residents. The water was
contaminated at a level beyond that which was considered safe and Cambridge Water had to
cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and
the rule in Rylands v Fletcher.
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15
[1906] Ch D 234 
16
Nicholls v Ely Beet Sugar Factory,(1936) Ch. 343
17
(1854) 1 C.B. 828
18
[1994] 2 AC 264 House of Lords

 Held: Eastern Counties Leather were not liable as the damage was too remote. It was not
reasonably foreseeable that the spillages would result in the closing of the borehole. The
foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and
claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in
negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

JUDICIAL REMEDIES

 Damages
 The critical thing in nuisance is not the behavior of the defendant, but the suffering of the
plaintiff. Whether the defendant has injured his neighbor is therefore an important aspect to be
considered. The plaintiff has to prove special damage. Where a person is still continuing then
according to pecuniary aspect of law, exemplary damages will be awarded.

 Injunction - A judicial order restraining a person from beginning or continuing an action

threatening or invading the legal right of another, or compelling a person to carry out a certain
act, e.g. to make restitution to an injured party.

 In order to obtain an injunction the injury complained of as existing or impending must be

such as by reason of its seriousness or its permanent character or both, it cannot be compensated
in money.
 

DEFENCES

1. EFFECTUAL DEFENCES

 PRESCRIPTION- Prescription is a special defence available in regard to nuisance. As a

result of prescription one gets a right to continue a private nuisance and this right is an
easement by 20 years of enjoyment. If the nuisance has been continued for 20 years
without interruption the defendant will not liable if s/he pleads a prescriptive right to the
nuisance.

Concerning Case

Sturges v Bridgman19

 Facts: The defendant ran a confectionary shop which operated a noisy pestle and mortar. It
had done so for over 20 years but had no neighbouring property so there were no complaints as
to its use. The claimant then built a consulting room for his practice as a physician adjacent to
the defendant’s noisy shop. The claimant brought an action in nuisance to obtain an injunction to
prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that
he had obtained the right to be noisy by operating the noisy pestle for over twenty years.
 Held: The use of land prior to the construction of the consulting room was not preventable or
actionable and therefore it was not capable of founding a prescription right. Thus, the court
granted an injunction against the confectioner
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