Lohita Bhandari
- Jul 20, 2021
- 7 min read

A complete guide to the Tort of Nuisance

Definition of Nuisance:

Nuisance is defined as an act that is harmful or offensive to the public or a member of it and for which there is a legal remedy.

Nuisance as a tort refers to illegal interference with a person’s use or amusement of land, or a few rights over land, or something about it. The interference can be in any way, e.g., noise, vibration, water, smoke, smell, gas, etc.

Illustration-If A is creating offensive noise or smell in his own land which is causing inconvenience to his neighbor B, then A is said to be causing a nuisance.

For an act to be a Nuisance, it should have the following essentials:

1. Wrongful Act - For an act to represent nuisance it should be prima facie wrongful or it ought to be an illegal interference with someone or his property.

2. Actual damage/loss – It must create an inconvenience that the law considers actual damage.

Differentiation between Nuisance and Trespass:

The definition of nuisance may sound similar to that trespass, however, there are two different concepts. Some of the differences are-

Trespass is direct interference; on the other hand, Nuisance is consequential.
Trespass is interference with a person’s possession of land; however, in Nuisance, there is interference with a person’s use or enjoyment of land.
In trespass, the interference is usually through some material or tangible objects; on the other hand, nuisance can be committed through intangible objects also as gas, noise smoke, etc.
Trespass is actionable per se, but in case of nuisance, it must be proved that damage is caused.

Kinds of Nuisance:

Nuisance is of two types-

Public or Common Nuisance and
Private Nuisance

1. Public or Common Nuisance:

Public nuisance is the nuisance that affects the right of the public, or huge public areas in general. Public nuisance is a punishable offense. For e.g., blocking a public path by excavating a trench may be a public nuisance.

Although such obstruction may cause inconvenience to a lot of people but none can be allowed to file a civil action for it, otherwise, there will be hundreds of actions for a single action only. To avoid this, the law makes Public Nuisance itself a punishable offence under criminal law.

In a lot of cases, a person may suffer some special damages which are different from that of the public. In such a case a civil right of action is available to the affected person. Although, the following conditions must be proved–

The person must show a particular injury caused to him that is beyond what is caused to the public in general.
Such damage has to be direct and not consequential.
The injury must have a huge effect.

In Dr. Ram Raj Singh v. Babulal,

the suspect created a brick grinding machine adjacent to the premises of the plaintiff, who was a medical practitioner. The brick grinding machine-generated dust impured the environment. The dirt came inside the chamber of the plaintiff and it caused troubled for him and his patients, and it caused red coating on their clothes, caused by the dirt, and could be apparently visible.

It was held that the plaintiff has been proven to have specific damage and a permanent injunction was issued against the defendant preventive him from running his brick grinding machine there.

2.Private Nuisance:

Private Nuisance refers to the unreasonable interference with the use or enjoyment of land of the plaintiff resulting in some injury.

The essentials the constitute private nuisance are :

(i) Unreasonable interference:

Every interference isn't always a nuisance. To represent a nuisance, the interference ought to be unreasonable. Thus someone simply can’t deliver action for the inconvenience made by the traffic noise if his/her house is near a road, nor can someone sue his neighbor for playing or listening to music. The interference must be reasonable.

In Radhey Shyam v. Gur Prasad,

Gur Prasad and another filed a case against Radhey Shyam and others for a permanent injunction to stop them from putting in and running a flour mill within the premises occupied by the defendant. The complainant in the case alleged that the mill was inflicting noise that as a result was poignant about the health of the plaintiff.

The court command that by running a flour mill in an exceedingly residential area, the litigant was inflicting the nuisance that conjointly settled the health of the plaintiff.

A reasonable act does not become unreasonable and actionable when the damage is caused only because of the sensitiveness of the plaintiff. For e.g., If few noises do not cause any trouble to a normal person but it only disturbs the plaintiff due to his over sensitiveness, then it is no nuisance against the plaintiff.

A lawful act does not become unlawful just because it is done with an evil motive. It is the act that should be taken into consideration, not the motive. However, if the act done by the defendant with an evil motive becomes an unreasonable interference, then it is actionable.

(ii) Interference with the use/enjoyment of Land:

Interference may either cause:

(a) injury to the property itself, or

(b) injury to the comfort or health of occupants of certain property.

(a) Injury to the property itself – An interference that is not authorized with the use of the property of another person through some object either tangible or intangible, which causes injury to the property, is actionable as nuisance. The interference may be through water, smoke, fumes, branches of trees, etc.

In St, Helen’s Smelting Co. v. Tipping, fumes from the defendant company’s works damaged plaintiffs’ trees and shrubs. Such damage caused injury to the property and hence the defendants were held liable.

(b) Injury to comfort or health – Injury to comfort or health is actionable as a nuisance. The standard of comfort varies from place to place and from time to time. The test of discomfort isn't done keeping in mind of a selected person however the test is how a median man residing within the same space would take it.

(iii) Damage

Actual damage is required to be proved in an action for nuisance.

In Fay v. Prentice, a cornice of the defendant’s house projected over the plaintiff’s garden. It had been held that the mere fact that the cornice projected over the plaintiff’s garden advances a presumption of fall of rainwater into and damage to the garden and the same need not to be proved. It was a nuisance.

DEFENCES AVAILABLE AGAINST NUISANCE

Lawyers sitting on a table preparing a defence

We know why you're here :)

So here are the defences available to people causing Nuisance-

1. Effective defences

The prescription can legalize an act of Nuisance in the case of Private Nuisance. It means that if the defendant has been performing that same activity on the land of the plaintiff for 20 years or more, he gets a legal right by prescription to continue with the same in the future also. On the expiration of the period of twenty years, the nuisance becomes ab initio as if it has been authorized by a grant of the owner of serviced land from the beginning.
When an act is carried out following the law, it is a complete defence. For e.g., A railway company that is authorized to run railway trains on track is not liable if, the sparks from the engine set fire to the near property even after due care, or the value of the property is reduced due to the noise, vibration, and smoke caused by the running trains.

2. Ineffective defences

The act of two of more than two persons who are not dependent on each other may cause nuisance although the act of any one of them would not be so. Thus, an action could be brought up against any one of them and there is no defense that the act of the defendant alone would be a nuisance, and the nuisance was caused when others had also acted in the same way.
the public good is an ineffective defence for nuisance. A person cannot commit nuisance against a particular person just because it is good for the public at large. Law does not allow someone to sacrifice their personal rights for the public.
The use of reasonable care cannot be considered as a valid defence. Legal responsibility ought to be observed strictly; the law does not take into consideration the excuse which results in violation of right itself.
Plaintiff coming to nuisance is another ineffective defence. A person cannot be expected to hold back from buying land on which nuisance already exists and the plaintiff can recover even if the nuisance has been going on long before he went to that place

REMEDIES AVAILABLE TO NUISANCE

The remedies available to nuisance are generally in monetary form. An injunction or abatement may also be provided under certain conditions.

An injunction orders a defendant to stop, remove, restrain, or limit a nuisance or abandon plans for a threatened nuisance. Injunction as a remedy is used only when the damage or the hazard of damage is irreplaceable and cannot be compensated by monetary form. More on injunctions, HERE.

An abatement is a self-help remedy that is available under certain circumstances. The privilege should be exercised within a reasonable period after knowing the nuisance and usually requires a notice to the defendant or his failure to act. For example, lifeless tree limbs extending dangerously over a neighbor's residence can be eliminated via way of means of the neighbor, after notifying the offending landowner of the nuisance. In instances, where there is an immediate danger to health, property, or life, no notification is necessary.

THE CONCLUSION

According to the law, nuisance is a person's behavior or physical condition that hurts or offends another person and is the basis of a claim. Public nuisance in public places or public property, adversely affecting morale, safety or health is regarded as a crime against the country. Activities such as obstruction of public roads, air and water pollution, housekeeping, prostitution, possession of explosives, etc. are some of the examples of public nuisance. Private nuisance, on the other hand, is an activity or condition that interferes with the use and enjoyment of nearby private property. For e.g., excessive noise, toxic fumes, unpleasant smells, and vibrations, etc.

Although Public nuisance can only be prosecuted by the state through criminal proceedings, court orders, or physical abetment, the same behavior or activity may also constitute private nuisance to neighboring homeowners, leading to civil proceedings. On the other hand, private nuisance is based upon the interference with the enjoyment or use of land and it is actionable only by the person who has an interest in such land.