This Article is written by Janhavi Arakeri, 1st-year student, Symbiosis Law School, Noida. She discusses the meaning of Private and Public Nuisance and the defences and the remedies to it.

Introduction

There may have been numerous instances when our neighbours have caused us trouble by ‘enjoying’ the right to use their own land in the manner they want. Be it loud music, noisy and crowded parties, renovation works et cetera. Amidst all this, one may wonder about their own rights to enjoy their land without any interference. Although every citizen has a right to enjoy their own land without interference, it is impossible to obtain it in an absolute manner.

In order to peacefully live in a society, one must endure a certain degree of sound, dust, smell, smoke, escape of effluent, etc.

Nuisance

As implied from the introduction, if someone elseʼs improper use of his/her property results into an unlawful and/or unreasonable interference with his/her use or enjoyment of that property, a nuisance is said to have taken place.

In other words, Nuisance is an unlawful or unreasonable interference with a personʼs use or enjoyment of land, or of right over property or in connection with it.

How can one judge the unreasonableness?

The standard of tolerance is that of the reasonable person and ordinary land use.

Claimants who are abnormally sensitive or use their land in a way which is different from the usual resulting in the land becoming sensitive to disruption are most certainly do not succeed in a private nuisance claim.

Unreasonableness can be judged on the basis of 5 main factors

Character/Nature of the Neighbourhood

The character of the neighbourhood in which the alleged nuisance has taken place is relevant in deciding whether there is a private nuisance or not. The occurrence of a nuisance cannot be determined by the abstract consideration of the thing itself, but also taking into consideration the circumstances and surroundings. Where an area is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner does not constitute a nuisance (Sturges v Bridgman [1879] 11 Ch D 852, exception in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234).

Note: It is possible for the nature of a locality to change with time.

The sensitivity of the Claimant

If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct then no nuisance is committed.

In a case held, the defendant let a floor of his property to a tenant to be used as a paper warehouse, retaining the room immediately below. The tenant brought an action to prevent his landlord from heating the room, on the grounds that the rising heat dried his special brown paper, making it less valuable. The ordinary paper would not have been damaged. There was no private nuisance (Robinson v Kilvert (1888), Bridlington Relay Co v Yorkshire Electricity Board [1965] Ch 436, McKinnon Industries Ltd v Walker [1951] 3 DLR 577).

Duration of Nuisance

The occurrence of a private nuisance can be determined by the duration of the alleged nuisance.

The likelihood of the act being unreasonable is more when the duration of it is longer.  

Public Benefit

Should an argument put forth by the defendant claiming the nuisance was caused for the benefit of the public at large be considered? Traditionally, the individual right is undoubtedly given more importance than the public benefit.  However, the modern view would consider what remedy is being sought. The court may take public benefit into consideration in order to decide whether or not to grant an injunction.

In Miller v Jackson [1977] QB 966, the plaintiff complained about cricket balls entering his garden frequently from the adjacent cricket club even after the club’s several attempts to prevent it. The court held that a nuisance had taken place however declined injunction since the court felt that public utility of the club outweighed the plaintiff’s interest

Malice

An ill intention or malice of the defendant may make what would otherwise have been reasonable conduct, unreasonable and a nuisance.

In a case held, the plaintiff gave music lessons in his house which annoyed the defendant as they lived in adjoining houses. The defendant shouted and banged on the walls in order to disturb the lessons.

Public Nuisance

A created a brick grinding machine adjoining to the premises of B who is a medical practitioner. A lot of dust is generated due to the functioning of the brick grinding machine. The dust enters B’s chamber and the settlement of the dust is clearly visible on the clothes adding on to the physical inconvenience.

The above mentioned case is that of Ram Raj Singh v. Babulal AIR 1982 and serves as an example for Public Nuisance.

Public Nuisance, also known as Common Nuisance is one of the two kinds of Nuisance, the other one being Private Nuisance. It essentially means an activity on one’s land that materially affects a class of people. It is a punishable offence.

Section 3(48) of the General Clauses Act, 1897 and Section 268 of the Indian Penal Code both deal with Public Nuisance.

When courts and law reports mention ‘nuisance’ it is usually referred to Private Nuisance and not Public Nuisance. When statute law refers to a ‘nuisance; it could be both Public Nuisance and Private Nuisance unless stated otherwise.

What consists of a Public Nuisance?

• An act or illegal omission
• Should cause any common injury, danger or annoyance
• Should be caused to the people in general who dwell, or occupy the property, in the vicinity
• Must necessarily cause an injury, an obstruction, danger or any annoyance to persons who may have occasion to use any public right.

How can one get rid of the Nuisance?

At whatever point a District Magistrate or a Sub-divisional Magistrate or some other Executive Magistrate exceptionally engaged for this of benefit by the State Government, on getting the report of a cop or other data and on taking such proof (assuming any) as he supposes fit, thinks about that any unlawful deterrent or disturbance ought to be expelled from any open spot or from any way, waterway or channel which is or might be legitimately utilized by general society.

Clarification: A “public place” incorporates property belonging to the State, outdoors grounds and grounds left abandoned for sanitary or recreational purposes.

Who can sue for Public Nuisance?

On account of a public nuisance, an injured party can start a criminal indictment against a guilty party. Be that as it may, transfer of these cases can happen summarily with no criminal proceeding.

For the most part, nuisance falls inside the jurisdiction of the state courts. Be that as it may, in situations where the establishment of nuisance lies in the Constitution, or explicit federal statutes, or guidelines, and case law, nuisance is dictated by the federal courts.

In the accompanying conditions, an individual may have a private right of action in regard to a public nuisance:

• He should demonstrate specific damage to himself past that which is endured by the remainder of the public, for example, he should demonstrate that he has endured some harm more than what the general body of the public needed to endure.
• The damage must be appeared to be of a considerable character.

Public nuisance must be subject of one activity, generally, a gathering may be destroyed by a million suits. Further, it would offer ascent to an assortment of case bringing about the burden to the judicial system.

As a rule, Public Nuisance does not offer ascent to civil action. Notwithstanding, in specific cases, action can be taken under tort law.

Private Nuisance

A private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large.

What are the essentials to prove Private Nuisance?

1. The claimant must have an interest in the land.  
2. There must be an unreasonable or unlawful use of the land by the defendant which is the source of the nuisance.
3. Such unreasonable or unlawful use must result in annoyance or discomfort or inconvenience to the claimant which the law considers as substantial or material.  
4. The claimant must suffer some harm/damage.

Who can be the claimants?

A claimant must have an interest in the land affected by the nuisance in order to make a claim of private nuisance. In effect, an ‘interest in land’ means a person must own or have a right over the land. Owners, leaseholders or tenants have an interest in the land and can make a claim of private nuisance.  

This is reflected in the rule that the claimant in an action for private nuisance has to have an interest in the land or exclusive possession of the land which is affected in order to be able to sue. In effect, a person who is in exclusive possession of the land is regarded as having an interest in the land.

In Foster v Warblington UDC (1906), A was an oyster merchant who for many years had been in occupation of oyster beds artificially constructed on the foreshore. He excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. However, he could not prove ownership of the oyster beds.

Held: A could bring an action in private nuisance caused by the discharge of sewage by the defendants into the oyster beds. The claimant was able to bring a claim of a private nuisance because he was in exclusive possession of the land even though he could not prove his title to it.

Just householders with a privilege to land could initiate an action in private nuisance, not their relatives.

Occupation of the property as a house isn’t adequate. An action might be brought by the proprietor or by the inhabitant or by an individual who enjoyed exclusive possession but lacked any proprietary interest. No action can be brought by a licensee. On the off chance that the harm in issue is physical harm to property, at that point, the individual with the privilege to sue should be the individual with the commitment to fix or have the burden of fixing the property. A licensee will seldom be in this position.

Who are the defendants in Private Nuisance?

The defendants involved in a Private Nuisance are complex and will be divided into 3 categories:

CREATORS	OCCUPIERS	LANDLORDS
Can always be sued even after vacating the land from where Nuisance originates	Liable for nuisance created by them and servants (vicarious liability) but not for independent contractors	Will not be liable as they have parted with control of the land. There are a number of exceptions to this principle.

• The creator should have been able to foresee the damages when the alleged nuisance had taken place.
• Earlier, nuisance created by trespassers and acts of nature were not the responsibility of the occupier. This was mainly due to the view that ownership consists of more rights rather than duties. However, recently the view has been changing and landlords are held liable for dangers emanating from their premises.
• In case a trespasser is causing nuisance but the occupier is aware of it and has failed to take any action to prevent it or abate it, then the occupier is liable. The standard of reasonableness is a subjective one. However, the duty is limited by the occupier’s ability (physical and financial) to abate the nuisance and by its foreseeable extent (Sedleigh-Denfield v O’Callaghan [1940] AC 880).
• A landlord will be held liable in case the nuisance had taken place at the time of letting and that the landlord knew or ought to have known about it. In the case of authorisation of the nuisance by the landlord, the landlord will be held liable.
• In Harris v James (1876) 45 LJQB 545, A field was let by A to B for. B to work it as a lime quarry and to set up lime kilns. The plaintiff complained of smoke from the kilns and nuisance caused by blasting in the quarrying. B was liable as occupier and A for authorising the commission of a nuisance.

What are the Remedies for Nuisance?

The remedies are given in the form of:

Damages

In public nuisance actions, the claimant must demonstrate exceptional injury so as to prevail with regards to getting compensation. Harms in tort are for the most part granted to reestablish the offended party to the position the person in question was in, had the tort not happened. In law, damages are an award, typically of cash, to be paid to an individual as compensation for loss or injury.

Injunctive relief

An injunction is a legal and an equitable remedy as to a special court order that forces a party to do or abstain from specific acts. Injunctions are not available as of right. The topic of when the court should practice its discretion to deny an injunction was considered in the accompanying case.

The respondent’s activities caused vibrations and commotions. The litigant asserted that the offended party ought to be restricted to damages as the award of an injunction would deny numerous Londoners of power. The court held that the discretion not to grant the injunction ought to be practised just in extraordinary conditions:

1) where the damage to the offended party’s lawful right is little; and

2) is fit for being evaluated in cash terms; and

3) is one which can be sufficiently remunerated by a little cash instalment; and

4) it is abusive to the litigant to concede an injunction.

A mix of the two harms and injunctive relief for isolated damages is affirmed.

Abatement

Abatement, in law, the intrusion of a legal proceeding upon the arguing by a litigant of an issue that keeps the offended party from going ahead with the suit around then or in that structure. The term abatement is likewise utilized in law to mean the evacuation or control of an inconvenience.

This incorporates the offended party himself/herself finding a way to stop the nuisance, for instance, by cutting overhanging branches entering from the litigant’s premises. The abator needs to issue not direct generally the abator himself/herself will turn into a trespasser. This type of remedy isn’t prudent much of the time.

Criminal Indictment (if there should be an occurrence of Public Nuisance as it were)

An indictment is a formal allegation against an individual associated with perpetrating wrongdoing. Indictments are commonly acquired for lawful offence allegations. An indictment is utilized as an alternative to a complaint in the trial court.

What are the Defences to Nuisance?

Effectual Defences

Prescriptive Right to Commit Nuisance

If Mr Luke Skywalker has been doing an act for more than 20 years because he, his ancestors, or they whose estate he hath, have had possession for the period prescribed by law.

Three things important to establish a right by prescription:

• Use and occupation or enjoyment;
• The identity of the thing enjoyed;
• That it should be adverse to the rights of some other person.

After a nuisance has been continuing its existence for twenty years prescriptive right to continue it is acquired as an easement appurtenant to the land on which it exists.  On the expiration of this period, the nuisance becomes legalised ab initio, as if it had been authorised in its commencement by a grant from the owner of the servient land. The time runs, not from the day when the cause of the nuisance began but from the day when the nuisance began (Exception Sturges Vs. Bridgman).

Statutory Authority

If suppose an act has been done under the given statute, it will be accepted as a defence.

In Metropolitan Asylum District Board v. Hill, (1881) 6 AC 193 (HL),  A had run a railway company in the 19th century and had obtained a passing of a private act of parliament to cause nuisance since the operation of steam trains included smoke and noise, A will not be held liable.

An action for nuisance was brought by the owners of land adjacent to a smallpox hospital in Hampstead against the management of the hospital. It was argued that Smallpox hospital was a nuisance per se because, even if the hospital had been managed with due care, the disease of those within would escape infecting those living in the vicinity. The Court ordered in favour of the owners of land (Allen v. Gulf Oil Refining Ltd., (1981) 1 AC 1001)

Consent of Plaintiff

If the plaintiff consented to the nuisance, either expressly or by implication.

In Kiddle v City Business Properties (1942), A became a tenant of the defendant in a house below the house occupied by B (Landlord). The gutter of the Landlords house was blocked and when it rained, an overflow of rainwater from the blocked gutter at the bottom of a sloping roof in possession of the Landlord and above the tenant’s premises, damaged the stock in the tenant’s premises. It was held that B has a defence as the tenant impliedly consented to the risk of rainwater overflowing into his premises.

Necessity

A person who acts to prevent a threat of harm or injury can sometimes claim “necessity” as a defense in a subsequent nuisance action.

In State v. Cole, 403 S.E.2d 117 (S.C. 1991), A was convicted of driving with a suspended license for travelling to a telephone to call for help for his pregnant wife. He didn’t have his own phone, and his wife was experiencing back and stomach pains. He first walked to his only neighbour’s house to use the phone but found no one home. He then drove a mile and a half to the nearest phone to call his mother-in-law for help. On the drive back home, the police stopped him for broken tail light and arrested him for driving with a suspended license

Act of God

In Nichols v Marsland (1876), A had a number of artificial lakes on his land. An unprecedented rainfall such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water entered B’s house thus flooding it. In this case, A will not be held liable since the damage was caused by an Act of God.

An Act of God is when no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result from them.  

Trifles

The latin maxim “De minimis non curat lex”  means that law does not concern itself with matters that are insignificant and/or immaterial.

Examples include touching someone without an evil intention, touching someone’s boundary wall property, damage caused to a tree due to an adjoining tree’s shade falling upon it, etc.

Ineffectual Defenses

Nuisance due to acts of others

Where the nuisance is not caused by one, but a number of other persons, it is not a defence for the defendant to prove that their contribution alone would not have amounted to a nuisance.

Public Good

A nuisance may be the result of some operation that is of public benefit without a doubt, but it is an actionable nuisance nonetheless. An individual should not be deprived of his/her own rights for the consideration of public benefit without any legal compensation.

Plaintiff coming to the nuisance

If Mr Peter Parker knowingly purchases an estate in close vicinity to a smelting works, his claim for remedy due to fumes will not be issued.

The argument put forward by the confectioner was that the doctor was aware of the noise caused by the confectioner’s work before extending his chamber. The court rejected this argument as this was not a recognised defence in nuisance (Sturges v Bridgman (1879) 11 Ch D 852).

Trespass and Nuisance

How is Nuisance different from Trespass?

S.No.	TRESPASS	NUISANCE
1	Direct physical interference with the plaintiffʼs possession of land through some material or tangible object.	An injury to right to possession but not possession itself.
2	Direct injury (throwing stones on neighbour’s land)	Injury is consequential (roots of tree planted on defendant’s land undermine plaintiff’s foundation)
3	Actionable per se	Actionable on proof
4	Requires direct entry	Indirect entry, usually taken place from outside
5	Caused by tangible objects	Caused by intangible objects
6	Only person in direct possession can sue	Person indirectly affected can also sue

Nuisance and Negligence

There is a considerable amount of overlap and inter-relationship between the torts of nuisance and negligence. There can be times when negligence and nuisance both arise concurrently in a situation. In such cases, the claimant has to choose whether to file a case under nuisance or negligence. However, over the years, some distinctions have been highlighted between the two torts. While nuisance protects interests in the enjoyment of land, negligence deals with breach of duty of care which a person owes to others. Unlike negligence, a claimant seeks a remedy in the form of an injunction rather than damages in nuisance. This is because the main aim in nuisance is that the neighbour, against whom a complaint is made, should abstain from carrying out an activity which causes unlawful interference. Plus, in nuisance, the concepts of magnitude and unreasonableness are context-dependent. Whereas in negligence, the reasonableness is set from a reasonable man’s point of view, in nuisance we can’t have an objective outlook. It is not concerned with whether the defendant passes the ‘reasonable man’ test or not. Nuisance mainly deals with the unreasonableness of the outcome, rather than the unreasonableness of the defendant’s act. The law of nuisance mainly deals with violations of land or interests in or over the land and is not designed to cover personal injuries, which negligence does.

Conclusion

In the late 19th and early 20th centuries, the law of nuisance became difficult to administer, as competing for property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. As such, most jurisdictions now have a system of land use planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning generally overrules nuisance. For example: if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone can’t make a claim in nuisance. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance.

Similarly, modern environmental laws are an adaptation of the doctrine of a nuisance to modern complex societies, in that, a person’s use of his property may harmfully affect another’s property, or person, far from the nuisance activity, and from causes not easily integrated into historic understandings of nuisance law.

The boundaries of the Tort are potentially unclear, due to the public/private nuisance divide, and the existence of the rule in Rylands v Fletcher. Writers such as John Murphy at Lancaster University have popularised the idea that Rylands forms a separate, though related, tort. This is still an issue for debate, and is rejected by others (the primary distinction in Rylandsconcerns ‘escapes onto land’, and so it may be argued that the only difference is the nature of the nuisance, not the nature of the civil wrong.)

Under English law, unlike US law, it is no defence that the claimant “came to the nuisance”: the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour. In February 2014 the UK Supreme Court ruling in the case of Coventry v Lawrence prompted the launch of a campaign to have the “coming to a nuisance” law overturned. Campaigners hold that established lawful activity continuing with planning permission and local residents’ support should be accepted as part of the character of the area by any new residents coming to the locality

The law of nuisance is very nearly an uncodified one. However, it has developed and extended through interpretations and through plenty of judgments.  Indian Courts in the issues of nuisance have acquired seriously from the English standards just as from the choices of the customary law framework alongside making their precedents. This has brought about a sound arrangement of law being built up that guarantees fairness and prosperity of all, for example, the parties and the general public as a whole.