DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

OFFENCES RELATING TO PUBLIC NUISANCE

SUBJECT

INDIAN PENAL CODE- 1

NAME OF THE FACULTY

Dr. P. Vara Lakshmi

Name of the Candidate

D.SUMANTH

Roll No.
2018LLB120

SEMESTER 3

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. P. Vara

Lakshmi who gave me the golden opportunity to do this wonderful project on the topic
of (OFFENCES RELATING TO PUBLIC NUISANCE) which also helped me in doing
a lot of Research and I came to know about so many new things I am really thankful to
them.
Secondly I would also like to thank my friends who helped me a lot in finalizing this
project within the limited time frame.

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 TABLE OF CONTENTS :

INTRODUCTION OF NUISANCE (NOCUMENTUM)..................................................................4

ESSENTIALS OF NUISANCE..........................................................................................................4
KINDS OF NUISANCE......................................................................................................................5
PRIVATE NUISANCES:....................................................................................................................6
PUBLIC OR COMMON NUISANCES:............................................................................................6
PUBLIC NUISANCE AND ITS APPLICABILITY: WITH RELEVANT CASE LAWS.............6
DISTNCTION BETWEEN NUISANCE AND TRESSPASS.........................................................13
REMEDIES........................................................................................................................................14
DEFENCES:......................................................................................................................................16
CONCLUSION..................................................................................................................................20
BIBLIOGRAPHY :-..........................................................................................................................21

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 EANING OF NUISANCE (NOCUMENTUM)

Nuisance or annoyance means anything which causes hurt, inconvenience, or damage, or

which essentially interferes with the enjoyment of life or property. ‘Nuisance’ includes any
act, omission, place, or thing which causes or is likely to cause injury, danger or offence to
the sense of sight, smell or hearing or which is, or may be, dangerous to life or injurious to
health or property.

Anything done which unwarrantedly affects the rights of others, endangers life or health,
gives offence to the senses, violates the law of decency or obstructs the comfortable and
reasonable use of property amounts to nuisance.

ESSENTIALS OF NUISANCE –

In order that nuisance is actionable tort, it is essential that there should exist:

 Wrongful acts
 Damage or loss or inconvenience or annoyance caused to another.
 Inconvenience or discomfort to be considered must be more than mere delicacy or
fastidious and more than producing sensitive personal discomfort or annoyance. Such
annoyance or discomfort or inconvenience must be such which the law considers as
substantial or material.

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 Saraswathi, 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.1

In HALSEY V. ESSO PETROLEUM CO. LTD. , the defendant’s depot dealt with fuel oil
in its light from the chimneys projected from the boiler house, acid smuts containing sulphate
were emitted 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
paint work 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
1
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.

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smell and was more than would affect a sensitive person but the plaintiff had not suffered any
injury in health from the smell. During the night there was noise from the boilers which at its
peak caused window and doors in the plaintiff’s house to vibrate and prevented the plaintiff’s
sleeping. An action was brought by the plaintiff for nuisance by acid smuts, smell and noise.
The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or
smell.

KINDS OF NUISANCE:

Nuisances may be divided into two main headings namely,

(i) Private nuisances

(ii) Public nuisances.

This division is not exhaustive, and to some extent overlap with each other; for the same act
may often cause a public nuisance and also cause special damage to individuals.

Nuisances may be permanent, continuing, recurrent and temporary nuisances. A permanent

nuisance is one of such a character and existing under such circumstances that it will be
presumed to continue indefinitely, and as a rule consists of some building or structure.

Nuisances consisting of acts done, or particular uses or property, may be properly termed
continuing when they are of such a character that they may continue indefinitely, or on the
other hand may be discontinued at any time; recurrent when they occur from time to time but
are not continuous or uninterrupted; and temporary when from their nature they will not be
continued or repeated.2

Nuisances may be

(i) nuisances per se or nuisances at law and

(ii) nuisances per accidents or nuisances in fact.

A nuisance at law or a nuisance per se in an act, occupation, or structure which is a nuisance

at all times and under any circumstances, regardless of location or surroundings. A nuisance
in fact or nuisance per accident consists of those acts, occupations, or structures which are not
nuisances per se but may become nuisances by reason of the circumstances or the location
and surroundings.

2
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.

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PRIVATE NUISANCES:

Private nuisance is anything which causes material discomfort and annoyance to a man in the
use for ordinary purposes of his house or property and for the suppression of which the
individuals aggrieved are entitled to invoke the assistance of the courts.

Private nuisance may be defined as anything done to the hurt or annoyance of the lands,
tenements or, hereditaments of another since private nuisance affects only particular
individuals and they are treated as private wrongs and they do not form the subject matter of
public prosecutor.

PUBLIC OR COMMON NUISANCES:

Public nuisance or common nuisance is an offence against the public either by doing a thing
which tends to the annoyance of the whole community in general, or by neglecting to do
anything which the common good requires. It is an act affecting the public at large, or some
considerable portion of them; and it must interfere with rights which members of the
community might otherwise enjoy.

Public nuisances which injuriously affect the welfare of the community are dealt with by or
in the name of State or corporate bodies specially authorised by statute to intervene.

In public nuisance it is not necessary that the annoyance should injuriously affect every
member of the public within its range of operation. It is sufficient that it should affect people
in general who dwell in the vicinity. It is also sufficient that if the act is of such a nature that
it must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.3

In regard to the public nuisance, the rights which are common to all subjects have been
infringed; generally speaking such rights are unconnected in any way with possession or title
to immovable property.

PUBLIC NUISANCE AND ITS APPLICABILITY: WITH RELEVANT CASE LAWS

It is only actionable as a tort if the claimant has suffered damage over and above other
members of the public. Defences include statutory authority and act of a stranger, but not
prescription. Remedies include damages and an injunction to restrain further repetition of acts
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of public nuisance. It is primarily a crime under section 268 of IPC prosecuted by the
Attorney-General. An example would be unreasonable use and obstruction of the highway.

Section 268 of the Indian Penal Code, defines it as "an act or illegal omission which
causes any common injury, danger or annoyance, to the people in general who dwell, or
occupy property, in the vicinity, or which must necessarily cause injury, abstraction,
denier or annoyance to persons who may have occasion to use an public right

Simply speaking, 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 public
nuisance.

A public nuisance is a thing, act, occupation, condition, or use of property which continues
for such length of time as to:

(i) Substantially annoy, injure, or endanger the comfort, health, repose, or safety of
the public; or
(ii) In any way render the public insecure in life or in the use of property; or
(iii) Greatly offend the public morals or decency; or
(iv) Unlawfully and substantially interfere with, obstruct, or tend to obstruct or render
dangerous for passage any street, alley, highway, navigable body of water or other
public way, or the use of public property.

Some Examples which public Nuisance effecting Public peace & safety are:

1. All signs, billboards, awnings, and other similar structures over or near streets,
sidewalks, public grounds, or places frequented by the public so situated or
constructed as to endanger the public safety.
2. All buildings and structures erected, repaired, or altered within the City in violation of
the provisions of any ordinance relating to materials and manner of construction.
3. All unauthorized signs, signals, markings, or devices placed or maintained upon or in
view of any public highway or railway crossing which purport to be or may be
mistaken as official traffic control devices or railroad signs or signal or which,

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 because of their colour, location, brilliance, or manner of operation, interfere with the
effectiveness of any such device, sign, or signal.4
4. All trees, hedges, billboards, or other obstructions which prevent persons driving
vehicles on public streets, alleys, or highways from obtaining a clear view of traffic
when approaching an intersection or pedestrian crosswalk.
5. All use or display of fireworks, except as provided by State law and City ordinances.
Etc.

CIVIL ACTION FOR PUBLIC NUISANCE:

The proof of special damage entitles the plaintiff to bring a civil action for what may be
otherwise a public nuisance.

Thus if standing of horses and wagons for an unreasonably long time outside a man’s house
creates darkness and bad smell for the occupants of the house and also obstructs the access of
customers into it, the damage is particular, direct and substantial and entitles the occupier to
maintain an action.

FAMOUS & RECENT CASE DECISIONS ON PUBLIC NUISANCE:

Dr. Ram Raj Singh v. Babulal :-

Plaintiff, a medical practitioner’s business was affected by the defendant’s brick grinding
machine. Coming to the facts of this case there is a brick limb factory near a medical clinic
which belongs to Babulal. Brick grinding machine generates dust on medical clinic every
day. Patients suffering & caused physically inconvenience due to this dust which producing
by this factory and their red coating on clothes, caused by the dust and could be apparently
visible. It was held that special damages to the plaintiff had been proved and permanent
injunction was issued against the Babulal restraining him from running his brick grinding
machine there .5

In Rose v Milles: One canal was blocked by the milles (defendant), causing a public
nuisance, the defendant wrongfully moored his barge across a public navigable Crack.
Plaintiff had to incur considerable expenditure in unloading cargo and transporting the same
by land. It was held that there was that there was special damage caused to the plaintiff to
support his claim. Decision was yes. Here defendant is liable. and Issue is Could a private

4
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.
5
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html

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claimant sue for damages due to the nuisance’s effect on the costs of transporting goods via
that route?

Reasoning: The claimant had suffered special damage over and above the class mainly
affected by the nuisance.

In Winterbottom v. Lord Derby 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 than could have been suffered by other members
of the public. Kelly, J. observed, “If we were to hold that everybody who merely walked up
the obstruction, or who chose to incur expenses in removing it might bring his action for
being obstructed. there would really be no limit to the number of actions which might be
brought. ”

In 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.

The plaintiff accepted certain payments from certain persons and permitted them to occupy
seats in the first and second floor of her building. Before the date of the said procession the
defendant corporation constructed a stand on the highway in front of the plaintiff’s building
to enable the members of the Corporation and its guests to have a view of the procession.
This structure now obstructed the view from the plaintiff’s building. Because of the
obstructio0n the plaintiff was deprived of the profitable contracts of letting 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.6

REGARDING PUBLIC NUISANCE:

Section 268 of the Indian Penal Code provides that: “A person is guilty of a public nuisance,
who does any act or is guilty of an illegal omission, which causes any common injury, danger
or annoyance to the public or to the people in general who dwell or occupy property in the
6
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vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or
advantage.”

Section 268 of the Code requires the following essentials.

(1) Doing of any act or illegal omission to do an act.

(2) The act or omission;

(i) Must cause any common injury, danger or annoyance-

a) To the public, or

b) To the people in general who dwell or occupy property in the vicinity, or

(ii) Must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.

Public nuisance is based on the principle embodied in the maxim of civil law “sic utere tuo ut
rem publicum non laedas”, which means ‘enjoy your property in such a way as not to injure
the right of the public’.

According to Section 12 of the Code, the word ‘public’ includes any class of the public or
community. Thus, a class or community residing in a particular locality may come within the
term ‘public’. In popular parlance, the word ‘public’ means the general body of humankind or
of a nation, State or community.

But as defined in the IPC, it includes any class of the public even so small, but still large
enough to form a ‘class’ and which excludes the possibility of a mere individual. By ‘public’
means general public and not an individual of particularly refined susceptibilities.

To constitute an offence under Section 268, there must be an injury, danger or annoyance. It
must be caused to the public or the people in general, who live or occupy property in the
vicinity. It can also be caused to anyone who may have the occasion to use a public right.

It is immaterial whether the act complained of is convenient to a large number of the public
than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of
their right by part of the public may show that it is not a nuisance to any of the public. In the

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second paragraph of Section 268 it is stated that a common nuisance cannot be excused on
the ground that it causes some convenience or advantage.7

No prescriptive right can be acquired to maintain and no length of time can legalise a public
nuisance, though twenty years’ user may find the right of an individual, yet the public have a
right to demand the suppression of a nuisance even of a longer standing.8

The words ‘illegal omission’ in Section 268 must be construed in the light of the definitions
of words ‘acts’, ‘act’ and ‘illegal’ given in Sections 32, 33 and 43, IPC, respectively. Every
omission will not constitute an offence under Section 268. Unless the omission which causes
the nuisance is an illegal omission in the above sense, there will be no public nuisance.

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 public
nuisances. Some of the public nuisances, according to decided cases, are:

1) A brew-house, glass-house or swine-yard may be a public nuisance if it is shown that the

trade is such as to render the enjoyment of life and property uncomfortable;

2) Erecting gunpowder mills or keeping gunpowder magazine near a town;

3) Keeping large quantities of naphtha near dwelling-houses;

4) Blasting stone near a high-way;

5) Keeping large quantities of materials for making fireworks near a street;

6) Working rice-husking machine at night in a residential quarter of a city;

7) Keeping disorderly houses e.g., disorderly inns, bawdy houses, gaming houses;

8) Committing acts of indecency in public places;

9) Houses maintained for gambling or the keeping up of lottery or betting house that attract a
number of disorderly persons and thus cause annoyance to the neighbours;

10) Disturbing the stillness of the night by making a great noise by speaking with loud voice,
or a nude exposure of one’s person to the public, whether from the balcony of one’s own
house or from a public place such as a urinal, an omnibus or a bathing place, however

7
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html
8
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.

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ancient, by which female pass or the exhibition of a nude figure covered with sores as an
advertisement by a herbalish;

11) Exhibition by beggars in fairs or markets of their loathsome ailments with a view to
exciting pity will also be nuisance though it is generally tolerated by the apathetic masses;

12) If any portion, however small, of a public road is encroached upon, it would cause
obstruction to persons who may have occasion to use the highway and it would constitute the
offence of public nuisance.

13) Appropriating a part of a street by building over it or by erecting a platform in front the
house which abutted on it; filling up a portion of a ditch or drain which formed part of a
public way and which belonged to the public.

14) Tobacco smoking in the form of cigarettes, cigars, or beedis falls within the mischief of
the penal provisions relating to ‘public nuisance’.

There is a class of nuisance which 0is known as legalised nuisance such as cremation of the
dead, licensed trade etc. Even a lawful trade may sometimes become a nuisance, if it
interferes with the comfort and peace of the neighbours or if it becomes a health hazard.

Slaughtering of cattle cannot be deemed to be a public nuisance, unless the act is done in
places and in a manner where it might prove to be a public nuisance. Mere sale of meat or
fish near or on a public road cannot be deemed a nuisance though the fact that such exposure
is offensive to the religious susceptibilities may be a matter for executive action.

The throwing of rubbish into one’s own garden is ordinarily not a public nuisance unless it
affects the hygienic conditions of the vicinity.9

A common gambling-house to which everyone who chooses to pay is able to go is

necessarily a nuisance and no evidence of any actual annoyance to the public is required in
such a case. But a person who admits gamblers into his house and every person who games
therein are not guilty of this offence in the absence of such evidence.

Public nuisance is an act or omission which causes a class of his majesty’s subject to suffer
unreasonable discomfort or inconvenient or interference with their right. Public nuisance is
an interference with rights of the public at large.10

9
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html
10
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.

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E.g. obstruction of public highway, selling impure goods, carrying on an offensive trade.

 It is primarily a crime punishable by the Penal Code (Chapter 14).

 The action can only be brought by the AG (s.8(1) of the Government Proceeding Act
1956.

A nuisance will not be public unless the number of persons affected is sufficiently large to
constitute a „class. This is a question of fact. AG v PYA Quarries (1957) – Dust and
vibrations caused by the operation of a quarry amounted to a public nuisance although the D
tried to argue that too few people were affected by their act. The court of Appeal in this case
did not define how many people constitute a class. But Lord Denning indicated that there
would be an action for P.N if the disturbance was so widespread that it would be
unreasonable to expect only one individual to try to prevent it. In other words the question is
more one of the effect upon the community that one of the numbers involved.

ACTIONABLE PUBLIC NUISANCE :-

Public nuisance is sometimes actionable as a tort. An individual can take a civil action for
public nuisance when he suffers special damage greater than that suffered by the public. He
must prove that he suffered damage which is different from the damage caused to the rest of
the public. It is over and above that suffered by the public at large.

CAMPBELL V PADDINGTON CORP (1911) - The defendant was held liable in nuisance
for erecting a grandstand which caused obstruction to the public highway. The nuisance also
had prevented the P from letting her windows to view a procession.11

PACIFIC ENGINEERING V. HJ. AHMAD RICE MILL (1966) :

The P were in the business of selling heavy earth-moving and construction equipment’s such
as heavy tractors, forklift trucks etc. Padi rusk form the def‟s factory would fly over to the
P’s premises when the D burned the padi rusk. The P’s workers had to cover their mouths and
noses to prevent themselves from inhaling the dusk. They had to shut the door when the wind
blew in their direction and the machines which were displayed became dusty very quickly.

HELD: In a public nuisance, someone may institute proceeding without prior consent from
the AG if he suffered special damage. Injunction was granted.12

11
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html
12
Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.

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DISTNCTION BETWEEN NUISANCE AND TRESSPASS

Trespass is direct physical interference with the plaintiff’s possession of land through some
material or tangible object while nuisance is an injury to some right accessory to possession
but no possession itself.

 E.g. a right of way or light is an incorporeal right over property not amounting to
possession of it, and hence disturbance of it is a nuisance and not trespass.
 Trespass is actionable per se, while nuisance is actionable only on proof of actual
damage. It means trespass and nuisance are mutually exclusive.13

Simple entry on another’s property without causing him any other injury would be trespass.
In nuisance injury to the property of another or interference with his personal comfort or
enjoyment of property is necessary. They may overlap when the injury is to possessory as
well as to some right necessary to possession. E.g. trespass of cattle discharge of noxious
matter into a stream and ultimately on another’s land.

To cause a material and tangible loss to an object or to enter another person’s land is trespass
and not nuisance; but where the thing is not material and tangible or where though material
and tangible, it is not direct act of the defendant but merely consequential *on his act, the
injury is not trespass but merely a nuisance actionable on proof of actual damage.

If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.

E.g. planting a tree on another’s land is trespass, whereas when one plants a tree over his own
land and the roots or branches project into or over the land of another person, act is nuisance.

REMEDIES

A person injured from private nuisance can make a claim for either damages or injunctive
relief or for both. Accordingly, remedies available for nuisance under law include:

 Damages; or
 Injunctive relief; or
 A combination of both damages and injunctive relief for separate harms alleged.

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In the case of a public nuisance, an injured party can initiate a criminal prosecution against an
offender. However, in some cases a nuisance can be disposed of summarily without any
judicial proceedings.14

Generally, nuisance falls within the jurisdiction of the state courts. However, in cases where
the foundation of nuisance lies in the Constitution, or specific federal statutes, or regulations,
and case law, nuisance is determined by the federal courts.

A private citizen who suffered an injury by reason of a public nuisance can sustain an action
for nuisance, if s/he establishes that an injury special and peculiar to himself/herself and
different from the one suffered in common by the general public was caused to him/her.

In ordinary nuisance cases, the standard adopted by the court for determining relief is the
standard of reasonableness. In determining the standard of reasonableness, the court usually
depends upon the effect of an activity upon one’s neighbours in the particular circumstances
and locality.

A notice or a request to abate a nuisance is a prerequisite in cases where a nuisance action is

brought against a person who did not create a nuisance and who did not have knowledge of
its existence. Likewise, a notice or request to abate the nuisance is necessary in cases where
a nuisance results from an operation that is ordinarily harmless.

A nuisance action without notice is permitted in the following cases:

 Where a substantial injury is caused by a nuisance;

 Where a danger to health, life, or property is imminent from the nuisance;
 Where there is an urgent necessity to remove the nuisance; and
 Where after complaint and notice of damage, the landowner continues to offend and
refuses to correct the nuisance.15

Therefore, before imposing liability upon a political subdivision for injuries caused by
nuisance, an actual or constructive knowledge of nuisance that posed danger to the public is
essential.

Both in public and private nuisance actions, the allegations must allege those facts that would
bring the thing or conduct complained of within the definition of nuisance. In an action for
damages, the word nuisance need not be used, if the alleged facts when proved would
14
Ratanlal & Dhirajlal's: The Law of Torts- 26th Edition.
15
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constitute a nuisance. In other words the allegations must specifically plead that there was a
substantial interference with the use and enjoyment of the premises.

Generally, the burden of proving a nuisance is upon a party who alleges it. The complaining
party must show that the facts alleged constituted a nuisance to a reasonable man. Hence a
complaining party through clear evidence must prove:

 The existence of nuisance; and

 The injury caused by nuisance.

Any nuisance action brought before the court of law will be determined on the basis of the
facts of each case. Apart from determining the existence of a nuisance, the court shall also
determine the following facts:

 Whether the proximate cause of a plaintiff’s injury was defendant’s act;

 Whether There Is Sufficient Injury Or Annoyance To Constitute Nuisance;
 Whether There Was A Loss Of Ordinary Use And Enjoyment By A Plaintiff;
 Whether A Plaintiff’s Reaction To The Alleged Interference Was A Normal One;
 Whether Nuisance Is Permanent Or Temporary In Nature;
 Whether Nuisance Is Abatable;
 Whether Nuisance Was Created Negligently Or Intentionally; And
 Whether A Defendant Acted With Malice Or In Reckless Disregard Of The Rights Of
Others.16

DEFENCES:

 Effectual
 Ineffectual

EFFECTUAL DEFENCES:

PRESCRIPTION :

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 for 20 years 17 or more, he acquires a legal right by
prescription, to continue therewith in future also. A right to commit a private nuisance may

16
Ratanlal & Dhirajlal's: The Law of Torts- 26th Edition.
17
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be acquired as an easement if the same has been peaceably and openly enjoyed as an
easement and as of right, without interruption and for 20 years. On the aspiration of this
period of 20 years the nuisance becomes legalised ab initio as if it has been authorised by a
grant 0f the owner of servant land from the beginning. The period of 20 years cannot
commence to run until the act complained of begins to be a nuisance.

In Sturges v. Bridgman, the defendant, a confectioner had a kitchen in the rear of his house.
For over twenty years confectionery materials were pounded in his kitchen by the use of large
pestles and mortars, and the noise and vibrations of these were not felt to be a nuisance
during that period by the plaintiff, a physician, living in the adjacent house. The physician
made a consulting room in the garden in the rear of his house and then for the first time he
felt that the noise and vibrations caused in the confectioner’s kitchen was a nuisance and they
materially - interfered with his practice. The court granted an injunction against the
confectioner, and his claim of prescriptive right to’ use mortars and pestles there, failed
because the interference had not been an actionable nuisance for the preceding period of 20
years. Nuisance began only when the consulting room was built by the physician at the end of
the house.18

STATUTORY AUTHORITY :-

An Act done under the authority of a statute is a complete defence. If nuisance is necessarily
incident to what has been authorised by a statute, there is no liability for that under the law of
torts. Thus, a railway company authorised to run railway trains one-track is not liable if, in
spite of due care, the sparks from the engine set tire to the adjoining property, or the value of
the adjoining property is depreciated by the noise, vibrations and smoke by the running of-
trains. According to Lord Halsbury: “It cannot now be doubted that a railway company
constituted for the purpose of carrying passengers, or goods, 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 or what would otherwise be a nuisance at common
law.”

INEFFECTUAL DEFENCES

1. Nuisance due to acts of others

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Sometimes the acts of two or more persons, acting independently of each other, may cause
nuisance although the act of any one 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 defendant alone would not be a
nuisance, and the nuisance was caused when others had also acted in the same way. If there is
nuisance by a hundred people leaving their wheelbarrows in a place and a single wheelbarrow
by itself could not have caused nuisance, an action can be brought against any of those
hundred persons and none of them can be allowed to take the defence that his act by itself
could not cause any damage to the complainant.

2. Public Good

It is no defence to say that what is a 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 individuals.

In Shelfer v. City of London Electric Lighting Co. during the building of an electrical
power house by the defendants there were violent vibrations resulting in damage to the
plaintiff’s house. In an action for injunction by the plaintiff the defence pleaded was that if
the building was not constructed the whole of the City of London would suffer by losing the
benefit of light to be supplied through the proposed power house. The plea was rejected and
the court issued an injunction against the defendants .

Similarly, 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 mean a
great hardship to ‘the defendant and his ‘poor’ customers.

In R. v. Train in an action for public nuisance by laying dangerous tram lines in the street it
was held to be no defence that the running of trams would mean convenience to the public
generally.19

3. Reasonable care:

Use of reasonable care to prevent nuisance is generally no defence.

In Rapier v. London Tramways Co., considerable stench amounting to nuisance was caused
from the 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. If an operation " cannot, by any care and skill, be prevented from
19
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html

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causing a nuisance it cannot lawfully be undertaken at all, except with the consent of those
injured by it or by the authority of a statute.20

4. Plaintiff coming to nuisance :

It is no defence that the plaintiff himself came to the place of nuisance. A person cannot be
expected to refrain from buying a . land on which a nuisance already exists and the plaintiff
can recover even if nuisance has been going on long before he went to that place. The maxim
volenti non fit injuria cannot be applied in such a case.21

In Bliss v. Hall,” in an action for nuisance for “diverse noisome, noxious and offensive
vapour, fumes, smell and stenches” out of defendant’s tallow-chandlery it ‘was held to be no
defence that that business had been continuing for three years before the plaintiff came to that
place .

Generally, nuisances cannot be justified on the ground of necessity, pecuniary interest,

convenience, or economic advantage to a defendant. An act cannot be a nuisance if it is
imperatively demanded by public convenience. Thus, when the public welfare requires it, a
nuisance may be permitted for special purposes.

However, at times, private interests must yield to the public good, and under the pressure of
public necessity what may amount to a nuisance otherwise may be inflicted upon certain
members of the community. Therefore, necessity is a defence to the tort of nuisance. It is to
be noted that injuries to a private property that result from the exercise by a private
corporation of public functions are damnum sin qua injuria.

Generally, there is no justification for maintaining a nuisance because the party complaining
of it came voluntarily within its reach. In other words, a defence cannot be made to an action
for nuisance that a plaintiff “came to the nuisance” by knowingly acquiring property in the
vicinity of the defendant’s premises. The duty to use due care is not abated towards one who
has elected to live or reside in the vicinity of the nuisance.

It is to be noted that if a person merely assents to or participates in the erection for hire of a
plant, s/he would not be estopped to complain of injury caused by the operation of the plant
so as to constitute an actionable private nuisance without regard to negligence or want of due
care. Consent is generally a full and perfect shield, when what is complained of is a civil

20
Ratanlal & Dhirajlal's: The Law of Torts- 26th Edition.
21
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html

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injury which was consented to. A person cannot complain of a nuisance, the erection of
which s/he concurred in or countenanced. In actions founded on tort, the leave and license of
the plaintiff to do an act complained of constitutes a good defence by reason of the maxim
volenti non fit injuria and as a rule, a man must bear loss arising from acts to which s/he has
assented.22

A right to maintain a private nuisance may rest in a license from the individual affected by
the licensee’s offensive conduct. In an action seeking redress for such a nuisance, if the
defendant can show an authorization from the plaintiff, then s/he completely discharges
himself/herself from liability. A party aggrieved has the right to remove a private nuisance
by abatement. As an obstruction or encroachment can constitute a private nuisance, the
owner of the easement may under the rules applicable to the abatement of nuisances proceed
to abate it.

An easement may be created by words of covenant as well as by words of grant. An

easement may permit an activity on land which otherwise amounts to nuisance in relation to
other land. If the right to maintain the nuisance amounts to an easement, it is held that a
license or authorization to maintain it must rest in an express grant in order to confer a right
that is beyond the power of the licensor to revoke.23

CONCLUSION

It was held by Lord Denning that the defendants were liable in both negligence and nuisance.
However, Cumming Bruce LJ refused the injunction on the grounds that it would be
inequitable to grant an injunction given that the cricket ground had been used for so long and
would be a loss to the community and Mrs Miller received the benefit of being adjacent to an
open space. Lord Lane would have granted the injunction stating that the decision in Sturges
v Bridgeman involves the assumption that it is no defence for the defendant to show that
they came to the nuisance. There may be an overlap between nuisance and negligence as a
negligent act may give rise to nuisance. Nuisance is one of the oldest actions in the common
law. The object of nuisance is to protect a person's proprietary interest in land, as opposed to
protecting any personal interests. There are two types of nuisance: public and private. Public
nuisance is a crime which will be prosecuted by the appropriate authority though individuals
22
Ratanlal & Dhirajlal's: The Law of Torts- 26th Edition.
23
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can sue for damages if they have suffered special damage (damage above what the public has
suffered). Most of this tutorial is concerned with private nuisance. Private nuisance requires
that the Defendant is using his land in an unreasonable manner. If a Claimant is successful at
trial they can claim damages and/or an injunction to prevent the nuisance from continuing or
occurring in the future.

Differences between Public Nuisance and private Nuisances which observed here are:

1. With respect to the public nuisance, if the plaintiff does not sustain special damage, an
action for damages is not maintainable But in case of private nuisance, an action for
damages is maintainable.
2. In case of public nuisance, an action lies for declaration with a prayer for injunction
but in case of private nuisance, an action for damages lies.
3. One person individually cannot sue in his own name for a public nuisance but Private
nuisance is actionable only by an individual.
4. Public nuisance cannot be legalized by any length of time. But a right to create or
continue a private nuisance can by acquired by way of prescription.
5. Public nuisance affects the right, safety or convenience of the public at large or a
considerable portion of the public. On the other hand, private nuisance affects right of
an individual or a determinate body of persons.
6. A public nuisance cannot be abated by any person affected thereby. On the other hand
a private nuisance can be so abated.

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BIBLIOGRAPHY :-
BOOK REFERENCES:

 Law of Torts - R.K. BANGIA 19th, 21st, 23rd Editions, Allahabad publications.
 Ratanlal & Dhirajlal's: The Law of Torts- 26th Edition.
 P.S.A. Pillai's Law of Tort -9th Edition
 Winfield &Jollowiz’sLaw of Torts
 Shugerman, Jed Handelsman, “The Floodgates of Strict Liability: Bursting Reservoirs
and the Adoption of Fletcher v. Rylandsin the Gilded Age”, The Yale Law Journal,
Vol. 110, 2010, page 333-377.

ONLINE SOURCES:

 Legalservicesindia.com,(2015).Nuisance:
http://www.legalservicesindia.com/article/article/nuisance-a-tort-825-1.html
[Accessed 28 Oct. 2015].
 Webstroke.co.uk, (2015). Tarry v Ashton [1876] | Case Summary | Webstroke Law.
[online] Available at: https://webstroke.co.uk/law/cases/tarry-v-ashton-1876
[Accessed 23rd oct 2015].
 Swarb.co.uk, (2015). Noble -v- Harrison; CA 1926 | swarb.co.uk. [online] Available
at: http://swarb.co.uk/noble-v-harrison-ca-1926/ [Accessed 23rd Oct. 2015].
 http://www.hbp.usm.my/aziz/parimala's%20case.htm [Accessed 22nd Oct. 2015].
 http://bottomlineresearch.ca/articles/articles/pdf/public_nuisance.pdf [Accessed 1
Nov. 2015].

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