NUISANCE (Introduction)- Nuisance basically means hurting anyone or causing injury to a person by the deeds of another person. It includes hurting or causing injury to the person by causing nuisance of lands, tenements, or hereditaments and it does not amount to the trespass. The word ‘nuisance’ is derived from the word nuire, to do hurt, or to annoy. Blackstone describes nuisance (nocum entum) as something that ‘worketh hurt,inconvenience, or damage .’
Nuisance is of two kinds-
Public or common nuisance is an act or 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 vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Public nuisance; which is an offence against the public order and economical regiment of the State, affects all equally, and can only be the subject of one indictment; otherwise, a party might be ruined by a million suits. No length of time can legalize it, as it cannot have a lawful beginning.
In order that an individual may have a private right of action in respect of a public nuisance-
• He must show a particular injury to himself beyond that which is suffered by the rest of the public. He must show that he has suffered some damage more than
what the general body of the public had to suffer.
• Such injury must be direct and not mere consequential injury ; as where one way is obstructed, but another is left open. In such a case the private and particular injury is not sufficiently direct to give a cause of action.
• The injury must be shown to be of a substantial character, not fleeting or evanescent. The damage caused to the plaintiff must thus be particular, direct and substantial. The object of this rule is to avoid multiplicity of litigation. Few examples of public nuisance can be discussed now.
In the case of Benjamin v Storr horses and wagons were kept standing for an unreasonable time in the highway opposite a man’s house, so that the access of customerswas obstructed, the house was darkened, and the people in it were annoyed by bad smells, it was held that an action lay as ‘particular, direct and substantial damage’ was caused to the plaintiff. He must show the existence of any personal injury which is of a higher degree than the rest of the public. Such an injury has to be direct and not just a consequential injury. The injury must be shown to have a huge effect.
In Soltan vs De Held, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel was rung at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled
to an injunction.
Private Nuisance is the using or authorizing the use of one’s property, or of anything under one’s control, so as to affect injuriously an owner or occupier of property by physically injuring his property by physically injuring his property or by interfering materially with his health, comfort or convenience.
Private nuisances include acts leading to
(a) wrongful disturbances of easements or servitudes e.g. obstruction of light
and air, disturbance of right to support; or
(b) wrongful escape of deleterious substance into another’s property, such as smoke, smell, fumes, gas, noise, water, filth , heart, electricity , animals etc.
Private Nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. It cannot be made the subject of an indictment, but may be the ground for civil action for damages or an injunction or both. A right to commit a private nuisance may be acquired by prescription as an easement.
The degree of harm in an action brought for nuisance on the ground that the thing alleged to be a nuisance is productive of personal discomfort must be greater than in an action brought on the ground that it produces injury to property. In an action for nuisance it is no defense that the plaintiff himself came to the nuisance; or that the act causing nuisance is beneficial to the public; or the place where the nuisance is created is the only place suitable for the purpose; or that the defendant is merely making a reasonable use of his property. The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be an act which no reasonable man would do. Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical
discomfort. There should be seeable damage to the property or with the enjoyment of the property in order to constitute a private nuisance.
Injury to Property and Physical Discomfort Distinguished
There is a distinction between an action for a nuisance in respect of an act producing a material injury to property, and one brought in respect of an act producing personal discomfort. As to the latter a person must, in the interest of the public generally, submit to the discomfort of the circumstances of the place, and the trades carried on around him; as to the former the same rule would not apply. In the case of physical discomfort, the act complained of must, have special regard to the circumstances and surroundings of the defendant’s property are;
• In excess of the natural and ordinary course of enjoyment of the property; and
• Materially interfering with the ordinary comfort of human existence.
A person is not liable for a nuisance constituted by the state of his property unless
(a) he causes it; or
(b) by the neglect of some duty he allows it to rise or
(c) when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he became or ought to have become aware of it.
A person in possession of a property is entitled to its undisturbed enjoyment as per law. However, if someone else’s improper use or enjoyment in his property ends up resulting into an unlawful interference with his enjoyment or use of that property or of some of the rights over it, or in connection with it, we can say that the tort of nuisance has occurred. The word ‘’nuisance’’ has been derived from the Old French Word ‘’nuire’’ which means ‘’to cause harm, or to hurt, or to annoy.’’ The Latin word for nuisance is ‘’nocere’’ which means ‘’to cause harm’’.
Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment of it and results from an improper usage by another individual.
Definitions by Various Thinkers-
According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another, or of the lands, which doesn’t amount to trespass. According to Salmond, nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity etc.
Essential Elements of Nuisance
Any act which is done with the intention to cause the infringement of the legal rights of another is considered to be a wrongful act. Damage or Loss or annoyance caused to another individual Damage or loss or annoyance must be such which the law should consider as a substantial material for the claim.
CASE- Rose vs. Miles (1815)
The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his goods through the creek due to which he had to transport his good through land because of which he suffered extra costs in the transportation. It was held that the act of the defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred loss over other members of the society and this he had a right of action against the defendant.
A nuisance may be in respect of either property or physical discomfort
In the case of a nuisance with respect to the property, any sensible injury to the property will be enough to support an action for the damages.
• Physical Discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential conditions required. . In excess of the natural and ordinary course of enjoyment of the property. The usage by the third party should be of out of the natural course of enjoyment from one party.
Interfering with the ordinary conduct of human existence The discomfort should be of such a degree that it would affect an individual in the locality and people would not be able to put up or tolerate with the enjoyment.
CASE- Radhey Shyam vs. Gur Prasad AIR 1978
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for permanent injunction restraining the defendant from installing and running the flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and five other individuals for a permanent injunction from running and continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn was affecting the health of the plaintiff. It was held that by running a flour mill in residential area, the defendant was causing a nuisance to the plaintiff and affecting his health severely.
DEFENCES AVAILABLE TO NUISANCE-
Prescription- A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law. Prescription is a special kind of defense, as, if a nuisance has been peacefully and openly been going on without any kind of interruption then the defense of prescription is available to the party. On the
expiration of this term of twenty years, the nuisance becomes legalized as if it had been authorized in its commencement by a grant from the owner of the land. The essence of prescription is explained in Section 26 of the Limitations Act and Section 15 of the Easements Act.
REMEDIES FOR NUISANCE
Injunction– an Injunction is a judicial order restraining a person from doing or continuing an act which might be threatening or invading the legal rights of another. It may be in the form of a temporary injunction which is granted on for a limited period of time which may get reversed or confirmed. If it is confirmed, then it takes the form of a permanent injunction.
Damages- the damages may be offered in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party is decided by the statute and the purpose of the damages is not just compensating the individual who has suffered but also making the defendant realize his mistakes and deter him from repeating the same wrong done by him.
Abatement– Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy is not favored by the law. But is available under certain circumstances .
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