Introduction

Nuisance is a common law of tort. It means that which causes offence, annoyance, trouble or
injury. A nuisance can be either public (also “common”) or private.

A public nuisance was defined by English scholar Sir J. F. Stephen as, “An act not warranted
by law, or an omission to discharge a legal duty, which act or omission obstructs or causes
inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s
subjects”.1

Private nuisance is the interference with the right of specific people. Nuisance is one of the
oldest cause of action known to the common law. Nuisance signifies that the “right of quiet
enjoyment” is being disrupted to such a degree that a tort is being committed.

Definition
Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land,
or some right over, or in connection with it2. Acts interfering with comfort, health or safety
are the example of it. The interference may be anyway, e.g., noise, vibration, heat, smoke,
smell, fumes, water, gas, electricity, excavation or disease producing germs.

According to Pollock “Nuisance is the wrong done to a man by unlawfully disturbing him in
the enjoyment of his property, or in some cases, in exercise of common right.”

Nuisance should be distinguished from trespass. Trespass is a direct physical interference

with the plaintiff’s possession of land through some material or tangible object.

The points of distinction between Nuisance and Trespass are as follows:-

If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.

Planting a tree on another’s land is trespass. But when a person plants a tree over his own

1
Sir J. F. Stephen, Digest of the Criminal law, p. 120
2
Winfield on Tort, 7th ed. P. 193: the definition was adopted in Bhanwarlal v. Dhanraj, A.I.R. (1973) Raj. 212
216 and Red v. Lyons & co., (1945) K.B. 216, 236; Howard v. Walker, (1947) 2 All E.R. 197, 199

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land and the root or branches project into the land of another person that is nuisance; to allow
stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.3

Kinds of Nuisance
There are two kinds of Nuisance:

I. Public or Common Nuisance

II. Private Nuisance, or Tort of Nuisance

Public Nuisance
Public nuisance is a crime. Public nuisance is interference with the right of public in general
and is punishable as an offence. “A person is guilty of public nuisance who does any act, or is
guilty of an illegal omission, which cause any common injury danger or annoyance to the
public or the people in general who dwell or occupy property in the vicinity or which must
necessarily cause injury, obstruction or annoyance to person who may have occasion to use
any public right.”4

Obstructing a public way by digging a trench, or constructing structures on it are example of

public nuisance. Although such obstruction may cause inconvenience to many persons but
may be hundreds of action for a single act of public nuisance. To avoid multiplicity of suits,
the law makes public nuisance only an offence punishable under criminal law. In Dr. Ram
Raj Singh v. Babulal,5 the defendant created a brick grinding machine adjoining the
premises of plaintiff, who was a medical practitioner. The brick grinding machine generated
dust, which polluted the atmosphere. The dust interred the consulting chamber of the plaintiff
and caused physical inconvenience to him and patients, and their red coating on cloths,
caused by the dust, could be apparently visible. It was held that special damages to the

3
Salmond, Tort, 14th ed. P. 72
4
Section 268, Indian Penal Code
5
Dr. Ram Raj Singh v. Babulal, A.I.R. 1982 All. 285, 289.
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plaintiff had been proved and a permanent injunction was issued against the defendant
restraining him from running his bricks grinding machine there.

Civil right action is also available to the person who has suffered some special or particular
damage, different from what is inflicted upon public as a whole. Now the public nuisance,
also becomes a private nuisance. The expression “special damage” means damage caused to a
party in contradiction to the public at large.6 For example, digging trench on a public
highway may cause inconvenience to the public at large. No member of public, who is
obstructed or has to take a diversion along with others, can sue under civil law. But if anyone
of them suffer more damage than suffered by the public at large, e.g., is severely injured by
falling into the trench, he can sue in tort. In order to sustain a civil action in respect of a
public nuisance, proof of special and particular damage is essential. If the plaintiff cannot
prove that he has suffered any special damage more damage than suffered by the other
members of the public, he cannot claim any compensation for the same.7

Private Nuisance
Private nuisance is a civil wrong. Private nuisance is interference with the right of an
individual. To constitute the tort of nuisance, the following essentials are required to be
proved:

1. Unreasonable interference;

2. Interference with the use of enjoyment of land;

3. Damage.

1. Unreasonable interference
Every interference is not a nuisance, but it may cause damage to the plaintiff’s property or
may cause personal discomfort to the plaintiff in the enjoyment of property. To constitute
nuisance, the interference should be unreasonable. Every person must put with some noise,

6
Dr. Ram Raj Singh V. Babulal, A.I.R. 1982 All 285, at 289.
7
Winterbottom v. Lord Derby (1857) L.R. 2 Exch. 316

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some vibration, some smell, etc. so that members of the society can enjoy their own right. If I
have a house by the side of the rode, I cannot bring an action for the inconvenience which is
necessarily incidental to the traffic on the road. I cannot sue my neighbor if his listening to
the radio interferes with my studies. So long as the interference is not unreasonable, no action
can be brought. “A balance has to be maintained between the right of occupier to do what he
likes with his own, and the right of his neighbor not to be interfered with.” If the interference
is unreasonable, it is no defence to say that it was for the public good. So the persistent
infliction of harm by a gasboard is not justified.

“For the purpose of nuisance, it has to be seen as to “what is reasonable according to ordinary
usages of mankind living in society, or more correctly in particular society.”8 An
unreasonable activity cannot be excused on the ground that reasonable care had been taken to
prevent it from becoming a nuisance.

Sensitive Plaintiff

An act which is otherwise reasonable does not become unreasonable and actionable when the
damage, even though substantial, is caused due to sensitiveness of the plaintiff or the use to
which he puts his property. If certain kinds of traffic is no nuisance for a healthy man, it will
not entitle a sick man to bring an action if he suffers thereby, even though the damage be
substantial. If some noise which do not disturb or annoy an ordinary person but disturb only
the plaintiff in his work or sleep due to his over sensitiveness, it is no nuisance against this
plaintiff.

Does Nuisance cannot state of affairs

Nuisance is generally a continuing wrong. A constant noise, smell or vibration is a nuisance

and ordinary and isolated act of escape cannot be considered to be a nuisance.

The wrongful escape is continuous, intermittent or isolated, it is actionable. An intermittent

interference may be probably more annoying than a constant one. “An intermittent noise,
particularly when it does not come at stated intervals is likely to be more disagreeable than if
it were constant.”9

8
Sadleigh Denfield v.O’Callaghan, (1940) A.C. 880, 930, perLord Wright.
9
Rapier v. London Tramways Co., (1893) 2 Ch. 588, at 591, per Kekewich, J.

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Malice

The act of defendant which is done with an evil motive, becomes an unreasonable
interference, it is actionable. A person has right to make a reasonable use of his own property
but if the use of his property causes substantial discomfort to others, it ceases to be
reasonable. “If a man creates a nuisance, he cannot say that he is acting reasonably.

In Christie v. Davey,10 the defendant, bring irritated by considerable amount of music

lessons by the plaintiff, a music teacher, living in the adjoining house, maliciously cause
discomfort to plaintiff by harming against the parting wall, beating of trays, whistling and
shrieking. The court granted an injunction against the defendant. The court held that noise
which were made in the defendant’s house were not of legitimate kind.

No proprietor has an absolute right to create noise upon his own land, because any right
which the law gives him is qualified by the condition that it must not be exercised to the
nuisance of his neighbors or of the public. If he violated that condition, he commits a legal
wrong, and if he does so intentionally, he is guilty of a malicious wrong, in its strict legal
sense.11

2. Interference with the use or enjoyment of Land

Interference may be caused in two forms:

 Injury to Property
Any unlawful interference with a person’s use or enjoyment of land through some
object which cause damage to the property is actionable as nuisance. It may be
allowing the branches of a tree to overhand on the land of another person, or the
escape of roots of the tree, water, gas, smoke or fumes, etc. on the neighbor’s land or
even by vibration.

10
(1898) 1 Ch. 316
11
Allen v. Flood (1898) A.C. 1,101.

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The right of every owner of land such land in its natural conditions, shall have support
naturally rendered by the subjacent and adjacent soil of another person. A person has natural
right to have his land supported by his neighbor’s12and therefore removal of support, lateral
or form beneath is a nuisance. The natural right of support of neighbor’s land is available
only in respect of land without buildings. Therefore, such a right is not available in respect of
building or other structure of land.

Although the law does not recognize the right of support of building, yet if the damage to the
building is consequential to the damage to natural right of support of land, an action for
withdrawal of support can lie.

Right to support by grant or prescription

In respect of buildings, the right to support may be required by grant or prescription. If a man
builds a house at the extremity of land, he does not thereby acquire any easement of support
or otherwise over the land of his neighbor. He has no load his own soil, so as to make it
requires the support of his neighbor, unless he has a grant to that effect.

ENGLAND

It is also a natural right and may be acquired by grant or prescription. When such a
right has been thus acquired, a substantial interference with it is an actionable
nuisance. It is not enough to show that the plaintiff’s building is having less light than
before. In order to be actionable, substantial diminution in the light has to be proved.
It is not sufficient to constitute an illegal obstruction, that the plaintiff had, in fact, less
light than before. In order to give a right of action, there must be a substantial
privation of light.

It is possible to acquire a right of air by grant and prescription. After such a right has
been acquired, its infringement is a nuisance. It is, however, not possible to acquire a
right to the access of air over the general unlimited surface of a neighbor’s land.13

12
Humperies v. Brodgen, (1850), 12 Q.B. 739, 744, per Lord Campbell, C.J.
13
Bryant v. Lefever, (1879) 4 C.P.D. 172, perCotton L.J.

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INDIA

Also in India the right to light and air is acquired by an easement. “Where the access
and use of light or air to and for any building have without interruption and for twenty
years and where any way of the use of any water or any other easement has been
peaceably and openly enjoyed by any person claiming title thereto as an easement and
as of right without interruption for twenty years, that right to such access and use of
light or air, way, watercourse, use of water or other easement shall be absolute and
indefeasible. Each of the said periods of twenty years before the institution of the suit
wherein the claim to which such period relates is contested.”14The prescriptive right
of easement of access and use of light and air can be acquired if the light has been
peaceably enjoyed, as of right, without interruption and for 20 years.
When there is substantial infringement of ran easement of light and air, the same is
actionable by an action for damages.15
Suit for disturbance of easement- the owner of any interest in the dominant heritage or
the occupier of such heritage may institute a suit necessary thereto, provided that
disturbance of the easement or any right necessary thereto provided that the
disturbance has actually caused substantial damage to the plaintiff.
The doing of any act likely to injure the plaintiff by affecting the
evidence of the easement, or by materially diminishing the value of dominant
heritage, is substantial damage within the meaning of this section.
Where the easement disturbed is a right to the free passage of light
passing to the openings in a house, n damage is substantial within the meaning
of this section, unless it falls within the interferes materially with the physical
comfort of the plaintiff, or prevents him from carrying on his accustomed
business in the dominant heritage as beneficially as he had done previous to
the instituting the suit.
Where the easement disturbed is a right to the free passage of air to the
opening in a house, damage is substantial within the meaning of this section if
it interferes materially with the physical comfort of the plaintiff, though it is
not injurious to his health.

14
Section 25 of the Limitation Act, 1963.
15
Section 33 of The Indian Easements Act, 1882

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 If a person has enjoyed some right for 20 years, he does not become entitled to get all
light. It is only when there is any appreciable diminution of light which has been
enjoyed for 20 years that constitute a right of action and gives to a proprietor of a
tenement that had this enjoyment, a right to prevent his neighbor’s building on his
own land. The action there for does not depends on the fact that the plaintiff has less
light than before but that there is substantial interference with comfortable or
profitable use of his premises, according to the ordinary notion of mankind.16 The
nature of locality has to be taken in to account and the proper test to see the
requirement of people who stay in that locality, because an interference which would
be substantial to the residence of an open area may not be so to person residing in
congested area. Even in a noisy locality, creation of more than average noise is
nuisance.17

 Injury to comfort or health

Substantial interference with the comfort and the convenience in the using the
premises is actionable as a nuisance. A mare trifling or fanciful inconvenience is not
enough. The law does not take account of very trifling maters. There should be a
serious inconvenience and interference with the comfort of the occupiers of the
dwelling house according to notions prevalent among reasonable Englishman and
woman. The standard of comfort varies from time to time and place to place.
Inconvenience and discomfort from the point of view of a particular plaintiff is not the
test of nuisance but the test is how an average man residing in the same area would
take it. The plaintiff may be over sensitive.

16
Paul v. Robson, (1914) 11 C.W.N. 933 (P.C.)
17
Lachmi Narain v. Ram Bharosey, A.I.R. 1926 All.764

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3. Damage
Actual damage is required to be proved in an action for nuisance.18 In the case of public
nuisance, the plaintiff can bring an action in tort only when he proves a special damage to
him. In private nuisance, although damage is one of the essentials, the law will often presume
it.

Nuisance on Highways

Obstruction on highway or creating dangers on it or on its close proximity is a nuisance.

Obstruction need not to be total. The obstruction must, however, be unreasonable. Thus to
cause the foundation of queues without completely blocking the public passage is a
nuisance.19

In Ware v. Garston Haulage Co. Ltd.,20 the defendant left his lorry with an
attached trailer by the side of highway. The trailer had no rear light in the night and the
plaintiff on his motor cycle ran into the back of the trailer. In an action by the plaintiff against
the defendant for nuisance. It was held that defendant was liable as his leaving the vehicle in
the darkness on the highway. Leaving a vehicle a place for an unreasonable long time even
during the day has been held to be nuisance.

Creation of dangers on the highway by making excavations, projection of tree or

lamps, leaving slippery or dangerous substance on the road also amount to nuisance. Doing
an act in one’s own premises, even though that offends the sentiments of the passer-by of a
person is not a nuisance. Thus cutting up of cows by Mohammedans in their own compound
for a religious purpose was held to be no offence even though the compound was partly
visible from a public road. Similarly cutting up of meat in one’s own premises and exposing
the same to view did not amount to nuisance merely because that offended the sentiment of a
section of the public.

18
Nicholls v. Ely Beet Sugar Factory, (1936) Ch. 343
19
R v. Carlie, (1834) 6 C & P 636; Barber v. penley, (1893) 2 Ch. 447; Lyons Sons and Co. v. Gulliver, (1914) 1 Ch.
631; Fabbri v. Morris, (1947) 1 All E.R. 315; R v. Clark, (1963) 1 All. E.R. 884.
20
(1914) K.B. 30.

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Projections

As regards projection on highway by object like overhanging branches of tree or a clock, etc.
from the land or building adjoining the highway, no action for nuisance can be brought for
such projection unless some damage is caused thereby. The mare fact that some object
projects on the highway does not mean that is a nuisance. If every projection was to be
considered to be nuisance, it would seem that, a fortiori every lamp so overhanging, every
signboard, every clock every awning outside a shop, are in themselves illegal erection, not to
mention the upper storey corbelled out over the roadway, which were common in every town
of country.

Noble v. Harrison,21 the branch of a beach tree growing on the defendant’s land hug on the
highway to a height of about 30 feet above the ground. In fine weather, the branch of tree
broke down and fell upoun the plaintiff vehicle which was passing along the highway. For the
damage to the vehicle plaintiff sued the defendant to make him liable for nuisance.

The right of the public in a highway was merely to pass so long that right was not interfered
with, they could not complain of what was in the air above or on the earth beneath. 22 If the
occupier of the premises knows of the defects in the projection but he does not get the same
removed, he would be liable. It is no answer to an action that he had employed an
independent contractor to remove that defect but the same was not done properly.

Defences to Private Nuisance

General defences apply to most torts, there are some tort where only certain defences are
accepted and nuisance is one of them!

Some of the defences recognized by the courts as valid defences and some other have been
rejected.

The following defences are considered valid in nuisance cases:

21
(1926) 2 K.B. 332.
22
Noble v. Harrison, (1926) 2 K.B. 332. At 337, per Rowatt, J.

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1. Statutory Authority
If the act said to be causing unreasonable interference, or it is related to, an
unauthorized under a statute, there can be no claim of private nuisance. There
is no liability for that under the tort.

2. Prescriptive Right
Law recognizes that if for a long period of time plaintiff has not objected to an
act that potentially disturbing, then the plaintiff cannot, after such passage of
time, turn around and complain of the act. The period of time to acquire this
right to continue with the activity is 20 years. For instance if you live next
door to musician for 20 years, and he has been playing his drums every
morning without complaint from you, then you are not entitled to complain
about it in the 21st year. The musician has an prescriptive right to do the act
that you claim to be a nuisance.

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 Conclusion

“Nuisance” is something done to disturb or hurt to the public or any private individual.

Unlawfully interfering into someone’s use or enjoyment of land is amount to Nuisance.

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