‘Nuisance may be described as the unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it.’
This definition was given
by Winfield.
Nuisance is derived from the
Latin word, ‘nocumentum’.
The modern remedies for
the nuisance are:
a. Abatement;
b. Injunction;
and
c. Damages.
Major case law includes:
Nayan Behari Das vs. State of
Orissa:
In the above mentioned case, the
facts are as follows, the petitioner filed a petition for the issuance of an
appropriate writ, direction or order commanding the opposite parties to adopt
the strict measures for restraining the use of multi toned horns and other such
devices giving an unduly harsh, shrill, loud or alarming noise, by vehicles.
The court considered it to be a fit case for issuing such directions, though
rules framed under the Motor Vehicles Act, 1988 already do not permit such
types of horns to be used. It was directed that at regular intervals
announcements be made through All India Radio, Doordarshan and the Press that
the use of multi toned horns or such devices was prohibited. It was advised to
exhibit the notices at the bus tops and R T O Offices.
Types of Nuisance:
There are two types of
nuisance. The nuisance can be divided into the following 2 classes:
a. Public nuisance:
A public nuisance or a common
nuisance is one which affects the public and is an annoyance to the people
generally who comes in the contact with it. Public nuisance is actionable at
the instance of the Attorney General or any other public
authority representing the Govt. Thus in order to entitle a plaintiff to bring
an action for the public nuisance, he must show the special damage, as where a
person falls into a trench unlawfully dug in a street and breaks his legs.
b.Private
nuisance:
A private nuisance is one which
injures the private person exclusively and he must show the special damage
which is in excess of the public inconvenience. The private nuisance is only a
civil wrong, which is actionable at the instance of the private individual who
suffered.
The distinction between the
public nuisance and the private nuisance is well explained in the judgment of
the Court of Appeal in the case of A G vs. P Y A O Quarries Ltd. In
general, however, a public nuisance is proved by the cumulative effect which it
is shown to have had on the people living within its sphere of influence. In
other words, a normal and legitimate way of proving a public nuisance is to
prove a sufficiently large collection of the private nuisance.
Major case law includes:-
South Corpn vs. Esso Petroleum Company:-
In the above mentioned case, it
had been held that the deposits of the oil on the foreshore of an estuary were
held to be a public nuisance.
Private nuisance are generally of 2 types or kinds:
1. Any wrongful disturbances of an easement or any other servitude attached to the land;
2. The act of wrongfully causing or all owing the escape of the deleterious things, such as water, smoke, smell, fumes, Gas, noise, etc. into another person’s land.
Principle:
All nuisances are generally caused by an act or omission whereby a person is lawfully annoyed, or prejudiced, or disturbed in the enjoyment of the land. The basis of the law of nuisance is the Latin maxim – ‘sic utere tuo ut alienum non laedas' which means that a man must not make such use of this property as unreasonably and unnecessarily to cause some inconvenience to his neighbour.
The Essentials of a Nuisance:
1. Interference:
In the private nuisance,
especially the private nuisance of the second type, in order to entitle the
plaintiff to sue for the damages there must be some interference with the use
or enjoyment of the land, or of some right over, or in the connection with it
causing the damage to the plaintiff. The interference may take place in
different ways such as through the noise, smell, pollution of air, water, etc.
These interferences may cause either an injury to the person or an injury to
the property.
2. Reasonableness:
In the private nuisance, the
reasonableness is considered as a test in this tort as well as in that of the
negligence. But the standard of the duty to take care is somewhat higher than
in the case of the negligence. In the nuisance even if a person has taken all the
possible care under the circumstances he will still be liable for the tort of
nuisance. Reasonableness in the tort of nuisance is something more than merely
“taking proper care”. It signifies what is legally right between the parties,
taking into the account all the circumstances of the case.
Major case law includes:
St. Helen’s Smelting Company vs. Tipping:
In the above mentioned case, it
has been held that, every person is bound to use his own property in such a way
that it does not injure the property of his neighbour, unless by the lapse of a
certain period of time he had acquired the prescriptive right to do so.
3. Malice:
In the tort of the nuisance, the
malice is a material. A lawful act may become an unlawful nuisance if the wrong
doer was actuated by the malicious motive.
Major case law includes:
Christie vs. Davey:
In the above mentioned case, the
facts are as follows; the plaintiff is a music teacher and takes music classes
for the students at his house. The defendant who was annoyed of the sound of
the noise of the music class, started to interrupt the plaintiff by ways of
beating the trays, whistling, and shrieking, hence an injunction was issued
because, the defendant had acted deliberately and maliciously for the purpose
of annoying the plaintiff. The plaintiff sued against the defendant for
disturbing him in this manner. Hence the defendant was held liable for
committing the tort of nuisance.
Highways:-
It is a general principle of the law that no action is maintainable by an individual for non repair of a highway. The maintenance of the public road is the duty of the Govt and if actions for the failure of public duties were allowed, there would be no end to such suits.
Major case law includes:-
Harper vs. Haden:
In the above mentioned case, it
had been held that, a person has got a right to obstruct a highway by the
erection of a scaffolding and hoarding for the purpose repairing his house
there.
R Sushila vs. Corpn of Chennai:
In the above mentioned case, it
had been held by the High Court that, the Corporation may remove the trees so
that the nuisance could be stopped.
Delhi Municipal Corpn vs. Subhagwanti:
In the above mentioned case, the
facts of the case is as follows, a clock tower which was 80 years old, and was
maintained by the Delhi Municipal Corpn., collapsed in Chandni Chowk, Delhi
causing the deaths of a number of persons. One of the deceased was the husband
of one Subhagwanti. The tower fell due to the negligence or non maintenance on
the side of the Delhi Municipal Corpn. The widow of the deceased, Mrs.
Subhagwanti sued the Delhi Municipal Corpn for the damages. The Supreme Court
held that the owner was legally responsible, irrespective of whether the damage
was caused by a patent or a latent defect and the same principle is applicable
to the owner of a tree standing by the side of a road. If the damage is done
owning to the collapse of a projection on the highway or by some other mischief
traceable to it, the occupier of the premises on which it stood is liable if he
knew of the defector ought, on the investigation, to have known of it. At any
rate this is the rule with respect to a thing that is naturally on the
premises, e.g. a tree.
When a tree, which had been dying for some years and should have been known to be dangerous by an ordinary land owner, fell and caused damage, the owner was held to be liable.
4. The things with which the interference takes place:-
The private nuisance is in the
nature of the injuries to the property, whether to the easements, such as the
obstruction of the light, or of the rights of the way, or of the diversion of a
watercourse, or the withdrawal of support from a house; or in the other kinds
of the property as by noise, noxious vapours, smoke and things of that type. In
all such cases the plaintiff, in order to maintain an action, must show some
title to the thing to which the nuisance is alleged to have been caused.
Who can sue?
The list of the persons who can sue is as follows:
1. The occupier of the land, that is, the person in actual possession of it. A lodger is presumably not entitled to sue. A guest of the occupier cannot sue. The right to sue does not extend even to the occupier’s wife, family and the servants.
2. The reversioners can sue if the nuisance is a permanent injury.
3. The user of a highway can sue when the nuisance causes the special damage to him.
Who can be sued?
The following are the persons who can be sued:
1. The creator of the nuisance:-
He who by himself or by his
servants does a positive act of misfeasance and creates a nuisance is always
liable for it, and for any continuance of it whether he be the owner, the
occupier or a stranger; and notwithstanding the fact that it exists on the land
which is not in his occupation and that he has therefore no power to put an end
to it.
Major case law includes:
Dollman vs. Hillman:-
The facts of the above mentioned
case is as follows, the defendants, the owners of a butcher’s shop, were held
liable to the plaintiff who had slipped on a piece of a fat which had come to
the pavement from their shop. They were held responsible, for directly or
indirectly they must have caused the nuisance. A person who has created a
positive misfeasance on a piece of the land will continue to be liable even
though he had left occupation of the land subsequently. But in all other cases,
liability which is appurtenant to a particular piece of land lasts only so long
as the occupation lasts on which it is based.
2. The Occupier:-
The occupier of the premises,
whether he is the tenant or the landowner, is generally liable for the nuisance
that exists on his land. An occupier of a premise is liable not only for the
acts of nuisance of those directly under his control but even of the
independent contractors.
Major case law includes:
A G vs. Stone:
The facts of the above mentioned
case are as follows, a landowner was held liable where he allowed a set of
gypsies to camp on his land who became a nuisance to the adjoining inhabitants
by their nose and by casting filth on the premises.
Liability of the Occupier for the trespasser’s act:
If the nuisance is created by a
trespasser, the occupier is not liable, unless with the knowledge or the means
of the knowledge on the part of himself or his agents:
a. He continues the nuisance without taking reasonably prompt and efficient steps for its abatement; or
b. He adopts the nuisance by making any use of the thing which constitutes it.
3. The Landlord:-
In general, a landlord is not
liable for a nuisance on the premises if he is not in occupation. The proper
person to be sued in such a case is the tenant. But the landlord is liable in
the following cases:
a. Where the landlord has expressly or impliedly authorised his tenant to create the nuisance.
b. If the landlord knew of the nuisance before he let it to the tenant.
c. If he ought to have known of the nuisance before letting.
d. If the landlord has undertaken the duty to repair the house let to the tenant, he will be liable.
Damages:-
In all case of the public nuisance the plaintiff should prove the damages in order to enable him to bring an action. In the cases of private nuisance the damages will very often be presumed.
Defences to the Nuisance:-
The defences of the nuisance are of two types, which are as follows: valid defences and invalid defences.
Invalid defences-
1. The coming to the nuisance is no defence.
It is no defence to say that the
plaintiff himself came to the nuisance. If the annoyance is unreasonable in
that particular district, then the plaintiff can recover even if it had been
going on there long before he came.
2. Usefulness or public benefit no defence.
It is also no defence to show
that the trade or business in question is a useful one and one which is necessary
in the public interest.
3. Contributory acts of others are no defence.
It is no defence that the act of
the defendant would not amount to a nuisance unless the other persons acting
independently of him did the same thing at the same time.
4. Suitable place no defence.
It is also no defence to an
action for the nuisance to show that the trade or business giving rise to the
nuisance is carried on in a convenient place, although, in considering whether
or not a nuisance has been caused, the character of the neighbourhood is an
element to be taken into account.
Valid defences-
1. Prescriptive right to commit the nuisance.
The right to commit a private
nuisance may be acquired by 20 year’s continuous use of the right to the
knowledge of the plaintiff with regard to the existence of the nuisance.
2. Abatement of the nuisance.
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