SEMESTER I

A PAPER ON:

“A STUDY ON PRIVATE NUISANCE ”

SUBMITTED TO

Prof. Deepika chhangani

SUBMITTED BY

Chundelikat Alvin Jaymon

FY BBALLB

Div C

ROLL NO 50
INTRODUCTION: The origin of tort of nuisance is to be found in the French word nuire and
Latin term nocere which means to hurt or to annoy. According to blackstone nuisance is
something that causes damage, inconvenience and annoyance. Federick Pollock has defined
nuisance as a wrong done to a person by unlawfully disturbing him in the enjoyment of his land,
or in some cases in the exercise of a common right. In modern parlance, nuisance is that branch
of the law of tort most closely concerned with “protection of the environment”. Thus nuisance
actions have concerned pollution by oil or noxious fumes, interference with leisure activities,
offensive smells from premises used for keeping animals or noise from industrial installations.
Dr .Salmond defines nuisance as a wrong consists in causing or allowing without lawful
justification, the escape of any deleterious thing from a person’s land or from elsewhere into
land in possession of the plaintiff, example; water, smoke, smell, fumes, gas, noise, heat,
vibration, electricity, disease, germs, animals. the tort of nuisance is generally a continuing
wrong which relates to unlawful interference with a person’s use or enjoyment of land or of
some right over, or in connection with it. Nuisance is both, a crime as well as a tort. The origin
of tort of nuisance may be traced in the Latin maxim sic utere tuo ut alienum non laedas which
means “so use your land or property as not to cause injury or damage to the property or land of
others”. In other words, a person should not use his land or right of land in a manner which
cause obstruction, inconvenience or annoyance to others in the use or enjoyment of their land or
right to land. Every one thinks that he should use his land in a manner in which he likes and on
the other hand, his neighbour wants that he should have a quiet enjoyment of his land. Law of
nuisance, therefore, attempts to preserve a balance between these two conflicting interests. The
question arises as to how much activity of a person on his land should be allowed so that his
neighbour’s right of enjoyment of land is not unduly interfered with? In such a case we have to
take into account many factors viz., defendant’s conduct, degree of interference, conflicting
interest’s etc ; to preserve a balance between the two. There is no controversy in the modern
world that evertyone must endure some degree of noise, dust, smell, smoke, vibrations, the
escape effluent etc. from his neighbour – otherwise the modern life would be impossible. Thus,
slight annoyance to a neighbour due to an activity of an individual on his land should not be
made actionable nuisance; whereas an activity of any individual which is of continuous or
recurrent nature and unduly interferes with the use or enjoyment of land of his neighbour should
be made actionable. Annoyance to one or very small number of persons is called ‘private
nuisance’.

REASON FOR CHOOSING THIS TOPIC: The reason I selected this topic is because of it’s
subjective and ambiguous nature. Every case is different and unique in it’s own way depending
upon the facts of the case. Intensity of annoyance and disturbance caused is one of the most
important factor. The topic is complex and simple at the same time. Simple to understand and
complex to apply the principle’s since every case is unique. This is the reason i selected this
topic.
HISTORICAL BACKGROUND: The scope and nature of a nuisance can best be understood
in the light of historical perspective. Since English law began its development in a landed
society it was natural that its primary purpose was the protection of real property. Out of this
need grew the basic common law action of assize of novel disseism, the ancestor of the modern
action of trespass. The assize of novel disseism proved inadequate because, like trespass today,
it was limited to direct interferences with possession, but it provided no protection where there
was no act done but only a culpable omission, or where the act was not immediately injurious
but only by consequence or collaterally . As early as the twelfth century the action originated to
secure such protection crystallized into the assize of nuisance. The assize of nuisance was
complementary to the assize of novel disseism. The assize of nuisance provided redress where
there was a continuing, indirect injury to the land or interference with its use and enjoyment
arising from things done or not done on the land of the defendant. In short, the assize of novel
disseisin was directed to secure an undisturbed possession, the assize of nuisance to secure its
free enjoyment.. Early in the fifteenth century the assize of nuisance was replaced by an action
on the case for a nuisance, which became the sole common law remedy This was a substitution
of remedies, and did not change the scope of liability. Before leaving the historical it may be
well to consider the fundamental nature of civil liability under the common law. English law
imposed liability on the basis of causal responsibility, and not moral responsibility Fault was not
of the essence of a legal wrong. The rule of strict or absolute liability prevailed. Fault was an
element of damages but not of liability; liability existed without fault but the extent of liability
was determined by the fault involved. This was based on the principle that damages were
compensatory and not punitive. The preoccupation of the early common law with the law
relating to real property so impressed this principle on this segment of the law that it remains
intact today " It is to be noted that a nuisance is a wrong to realty. It was only in the sixteenth
century and with the development of the law of personal torts that the idea that there should be
no liability without fault took hold. This idea was treated for what it was, an innovation. The
rule of limited liability has been largely limited to the field of personal torts, and it remains an
exception to the general rule of strict liability. In fact the trend of the law as a whole is to further
restrict the law of limited liability and to "revert to ancient conceptions."" Historically, therefore,
the law of nuisance developed to complement the action of trespass. While trespass provided
security against direct invasions of possession, nuisance provided protection against indirect
injuries to land or its use and enjoyment. Further, the protection afforded was absolute. Until
recently the common law concept of a nuisance was virtually unchallenged. Within the last 25
years an increasing number of courts have broken from the common law definition. Since the
breach between the traditional and modem views is fundamental a more detailed consideration
of the nature of a nuisance is necessary. The traditional view, and the one followed in
Wisconsin, received its classic expression in Bowman vs. Humphery.9 justice Weaver writing
the opinion. The matter is succinctly stated as follows-: "A nuisance is a condition, and not an
act or failure to act on the part of the person responsible for the condition. wrongful condition
exists, and the person charged therewith is responsible for its existence, he is liable for the
resulting
damages."https://pdfs.semanticscholar.org/9be4/9c2bc3ec0a52f6bf7f50c89e9d4e8c8fb2c7.pdf
R. Makowski, Torts: The Nature of Nuisance, 33 MARQ. L. REV. 240 (1950).
Available at: https://scholarship.law.marquette.edu/mulr/vol33/iss4/4
ANALYSIS:- It consists of four parts as follows

1.CONCEPT: A private nuisance is an injury to the private rights of a person and to the
comfortable occupation of his property. Winfield defines it as an unlawful interference with a
person’s use or enjoyment of lands, or some right over, or in connection with it. Thus, we
may define private nuisance as follows : private nuisance is some unauthorised user of a
man’s own property causing damage to property of another or some unauthorised interference
with the property of another causing damage. It has been said that the tort takes three
forms encroachment on a neighbour’s land; direct physical injury to the land; or interference
with the enjoyment of the land. The varieties of the third form are almost infinite but it is still
a tort against rights of property and therefore lies only at the suit of a person with a sufficient
interest in the land. Generally, the essence of a nuisance is a state of affairs that is either
continuous or recurrent, a condition or activity which unduly interferes with the use or
enjoyment of land. It is not necessary that there be any physical emanation from the
defendant’s premises. Noises and smells can be nuisances, but so, it seems, can be otherwise
offensive businesses. The mere presence of a building is not, however, a nuisance. Not every
slight annoyance is actionable. Stenches, smoke, the escape of effluent and a multitude of
different things may amount to a nuisance in fact but whether they constitute an actionable
nuisance will depend on a variety of considerations, especially the character of the
defendant’s conduct, and a balancing of conflicting interests. In fact the whole of the law of
private nuisance represents an attempt to preserve a balance between two conflicting
interests, that of one occupier in using his land as he thinks fit, and that of his neighbour in
the quiet enjoyment of his land. Everyone must endure some degree of noise, smell, etc. from
his neighbour, otherwise modern life would be impossible and such a privilege of interfering
with the comfort of a neighbour is reciprocal. It is repeatedly said in nuisance cases that the
rule is sic utere tuo ut alienum non laedas, but the maxim is unhelpful and misleading. If it
means that no person is ever allowed to use his property so aslo injure another, it is palpably
false. If it means that a person in using his property may injure his neighbour, but not if he
does so unlawfully, it is not worth stating, as it leaves unanswered the critical question of
when the interference becomes unlawful. Infact, the law repeatedly recognises that a person
may use his own land so as to injure another without committing a nuisance. It is only if such
use is unreasonable that it becomes unlawful.

ESSENTIALS: The essentials or ingredients of a private nuisance, which the plaintiff has to
prove against the defendants are as follows:
1. Unlawful or unreasonable interference.

2. Such interference should relate to peaceful use or enjoyment of land or any other right to
land.

3.Damage should have been caused.

These three are the main essentials of nuisance.

4. Action taken by the defendant after nuisance caused is another essential.
LANDMARK OR IMPORTANT CASES: 1. Andreae vs selfridge & co(1938)
The plaintiff occupied land from which she operated a hotel. The defendant owned the
surrounding land and carried out extensive demolition work on this land for rebuilding
purposes. The plaintiff sued the defendant for nuisance arising out of the dust and noise and
claimed that she had lost significant custom as a result. The Court of Appeal considered that,
since building operations cannot be carried out without a certain amount of noise and dust,
neighbours have to put up with a certain amount of discomfort. If building works were
reasonably carried on and all proper and reasonable steps were taken to ensure that no undue
inconvenience was caused to neighbours, they would not be entitled to complain. However,
the defendant had caused noise at unreasonable hours and the quantity of dust and grit was
described by the court as insufferable. The duty was to take proper precautions, to take
reasonable skill and care and to see that the nuisance was reduced to a minimum. This could
include restricting the hours of work, the amount of a particular type of work done at any one
time and using proper technical methods to avoid inconvenience. On the facts of the case, the
plaintiff succeeded. Andreae v Selfridge [1938] Ch 11 - CAUploaded byAzizul Kirosaki.

This case is considered an important judgement for establishing the essential of undue or
unreasonable interference.

2. St. Helen’s smelting Co. v. tipping(1865)

The fumes from the defendant’s factory damaged the plaintiff’s tree and plants. The
defendants were held liable because such damage was an injury to the property of the
plaintiff.

The above case is an example of injury to property.

3. Pakkle v. Aiyasami Ganapathi (1969)

In this case a suit was filed by some villagers, in a representative capacity, to seek an
injunction from the court in order to restrain the defendants from laying the salt pans in the
tank. It was alleged by the plaintiffs that laying the salt pans there in the tank would make the
water in the tank useless for bathing and drinking purposes. On the other hand, the defendant
contended that the plaintiffs had no proprietary rights on the suit land since it was property of
the government, who all could prevent the defendants from doing anything. The court found
out the tank owned by the government the plaintiffs had an immemorial right to the use of the
water in the tank and that the water had become saltish. Rejecting the contentions of the
defandants, the court held that the plaintiffs would be entitled to an injunction even though
the land in respect of which they were claiming an injunction was not owned by them and the
the only right they had was a common right over the property belonging to the government.
The court stated: “ Once it’s established that the villagers have a common right over the water
in the tank for purpose of using it for their bathing and drinking purpose, any interference
with that right would give them a cause of action, even though the interference is not in
respect of land belonging to the plaintiff. The action of the defendant would amount to
nuisance.”
The above case shows us that even if there is no injury to the property owned or occupied by
the plaintiff but to some right over or in connection with it, an action may lie for nuisance.
DEFENSES: A defendant in an action for nuisance may take up the following defences:

1. GRANT: Whenthe defendant has right under the terms of a contract to do an act of
nuisance, no action can be brought against him.

2. PRESCRIPTION: A right to commit a private nuisance maybe acquired as ab easement by

prescription.

3. STATUTORY AUTHORITY: When a statute specially authorises a certain act to be done

which would otherwise be actionable, no action will lie.

REMEDIES:
1. ABATEMENT: A person injured by nuisance may abate it. That is to say, he may remove
that which causes the nuisance.
(a)Points to remember: Abatement is remedy which the law does not favour. In the abatement
of nuisance, unnecessary damages must not be done, the complainer should not do more
damage than required.
(b)When there is more than one way to abating a nuisance, the least mischievous one should
be preferred.
(c) In order to remove a nuisance one must not enter upon the land of third person who is
innocent.

2. DAMAGES: The person complaining of a nuisance may file a suit for damages.

3.INJUNCTION: A person complaining of a nuisance may sue for restraining the defendant
from using his property in such a way as not to cause nuisance.

DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE

PUBLIC NUISANCE PRIVATE NUISANCE
A public nuisance affects the public at large A private nuisance affects only one person or
or some considerable portion of it. a determinate body of persons.

Public nuisance is both an offence as well as Private nuisance is only a tort and not an
a tort. offence.
 CONCLUSION

According to me, private nuisance cases are subjective and depend on the facts of the
respective case. Private nuisance is disrupting the usage or enjoyment of land of
another person. Private nuisance is only a tort. There are no specific codified
guildlines to establish nuisance or not, it always varies from case to case. There are
three main essentials which have to be kept in mind while ascertaining if the
defendant is liable for nuisance. The concept of nuisance is still being developed till
date. There are three major defences and remedies in the tort of nuisance. There is a
difference between trespass and nuisance. The most major point being that trespass
requires actual physical and only tangible material to enter the other persons land; but
in nuisance even simple disruption of enjoyment of the owners piece of land using
tangible or intangible material such as gas, fumes, etc sums up to nuisance. There
should always be a certain level of degree of damage done to amount for nuisance. I
feel the project was really interesting and fascinating . I gained a lot of information
regarding nuisance in general and public nuisance as well.

A hypothetical suggestion
I would personally suggest a certain amount to decide the degree of damages and
hence deciding if the defendant is liable for nuisance or not. Anything below that
specific amount isn’t a tort.

Example: The law states that the basic amount for an action to be a tort of nuisance
should be 50000rs, anything below it would not be considered as a tort of nuisance.