NUISANCE

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt,
or to annoy”. One in possession of a property is entitled as per law to undisturbed enjoyment
of it. If someone else’s improper use in his property results into an unlawful interference with
his use or enjoyment of that property or of some right over, or in connection with it, we may
say that tort of nuisance occurred. In other words, Nuisance is an unlawful interference with a
person’s use or enjoyment of land, or of some right over, or in connection with it. Nuisance is
an injury to the right of a person in possession of a property to undisturbed enjoyment of it
and result from an improper use by another person in his property.
Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands,
tenements of another, and not amounting to a trespass.”
According to Salmond, “the wrong of nuisance consists in causing or allowing without
lawful justification the escape of any deleterious thing from his land or from elsewhere into
land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration,
electricity, disease, germs, animals”.

DISTNCTION BETWEEN NUISANCE AND TRESSPASS

· Trespass is direct physical interference with the plaintiff’s possession of land through some
material or tangible object while nuisance is an injury to some right accessory to possession
but no possession itself.
E.g. a right of way or light is an incorporeal right over property not amounting to possession
of it, and hence disturbance of it is a nuisance and not trespass.
· Trespass is actionable per se, while nuisance is actionable only on proof of actual damage. It
means trespass and nuisance are mutually exclusive.
Simple entry on another’s property without causing him any other injury would be trespass.
In nuisance injury to the property of another or interference with his personal comfort or
enjoyment of property is necessary.
They may overlap when the injury is to possessory as well as to some right necessary to
possession. E.g. trespass of cattle discharge of noxious matter into a stream and ultimately on
another’s land.
· To cause a material and tangible loss to an object or to enter another person’s land is
trespass and not nuisance; but where the thing is not material and tangible or where though
material and tangible, it is not direct act of the defendant but merely consequential on his act,
the injury is not trespass but merely a nuisance actionable on proof of actual damage.

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

E.g. Planting a tree on another’s land is trespass, whereas when one plants a tree over his own
land and the roots or branches project into or over the land of another person, act is nuisance.
ESSENTIALS OF NUISANCE
In order that nuisance is actionable tort, it is essential that there should exist:
· wrongful acts;
· damage or loss or inconvenience or annoyance caused to another.
Inconvenience or discomfort to be considered must be more than mere delicacy or fastidious
and more than producing sensitive personal discomfort or annoyance. Such annoyance or
discomfort or inconvenience must be such which the law considers as substantial or material.

In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, the plaintiffs’-appellants
sued the defendants-respondents for a permanent injunction to restrain them from exhibiting
the film “Jai Santoshi Maa”. It was contended that exhibition of the film was a nuisance
because the plaintiff’s religious feelings were hurt as Goddesses Saraswati, Laxmi and
Parvati were defined as jealous and were ridiculed.
It was held that hurt to religious feelings was not an actionable wrong. Moreover the
plaintiff’s were free not to see the movie again.
In Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145:,the defendant’s depot dealt
with fuel oil in its light from the chimneys projected from the boiler house, acid smuts
containing sulphate were emitted and were visible falling outside the plaintiff’s house. There
was proof that the smuts had damaged clothes hung out to dry in the garden of the plaintiff’s
house and also paint work of the plaintiff’s car which he kept on the highway outside the
door of his house. The depot emanated a pungent and nauseating smell of oil which went
beyond a background smell and was more than would affect a sensitive person but the
plaintiff had not suffered any injury in health from the smell. During the night there was
noise from the boilers which at its peak caused window and doors in the plaintiff’s house to
vibrate and prevented the plaintiff’s sleeping. An action was brought by the plaintiff for
nuisance by acid smuts, smell and noise.
The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or
smell.

KINDS OF NUISANCE
Nuisance is of two kinds:
· Public Nuisance
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance
defined by the Indian Penal Code.
Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes
any common injury, danger or annoyance, 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.”

Simply speaking, public nuisance is an act affecting the public at large, or some considerable
portion of it; and it must interfere with rights which members of the community might
otherwise enjoy.
Thus acts which seriously interfere with the health, safety, comfort or convenience of the
public generally or which tend to degrade public morals have always been considered public
nuisance.

Examples of public nuisance are Carrying on trade which cause offensive smells, Malton
Board of Health v. Malton Manure Co., (1879) 4 Ex D 302; Carrying on trade which cause
intolerable noises, Lambton v. Mellish, (1894) 3 Ch 163; Keeping an inflammable substance
like gunpowder in large quantities, Lister’s case, (1856) 1 D & B 118; Drawing water in a
can from a filthy source, Attorney General v. Hornby, (1806) 7 East 195
Public nuisance can only be subject of one action, otherwise a party might be ruined by a
million suits. Further, it would give rise to multiplicity of litigation resulting in burdening the
judicial system. Generally speaking, Public Nuisance is not a tort and thus does not give rise
to civil action.
In the following circumstances, an individual may have a private right of action in respect a
public nuisance.
1. He must show a particular injury to himself beyond that which is suffered by the rest of
public i.e. he must show that he has suffered some damage more than what the general body
of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed,
but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next to a Roman
Catholic Chapel of which the defendant was the priest and the chapel bell 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.
In Leanse v. Egerton, (1943) 1 KB 323, The plaintiff, while walking on the highway was
injured on a Tuesday by glass falling from a window in an unoccupied house belonging to the
defendant, the window having been broken in an air raid during the previous Friday night.
Owing to the fact that the offices of the defendant’s agents were shut on the Saturday and the
Sunday and to the difficulty of getting labour during the week end, no steps to remedy the
risk to passers by had been taken until the Monday. The owner had no actual knowledge of
the state of the premises.
It was held that the defendant must be presumed to have knowledge of the existence of the
nuisance, that he had failed to take reasonable steps to bring it to an end although he had
ample time to do so, and that, therefore, he had “continued” it and was liable to the plaintiff.

In Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894:, In an action at the instance of
the Attorney General, it was held that the nuisance form vibration causing personal
discomfort was sufficiently widespread to amount to a public nuisance and that injunction
was rightly granted against the quarry owners restraining them from carrying on their
operations.

Without Proving Special Damage

In India under Section 91 of the Civil Procedure Code, allows civil action without the proof
of special damage. It reads as follows:
“S. 91.(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect,
the public, a suit for a declaration and injunction or for such other relief as may be
appropriate in the circumstances of the case, may be instituted-
by the Advocate General, or with the leave of the court, by two or more persons, even though
no special damage has been caused to such persons by reason of such public nuisance or
other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions.”
Thus a suit in respect of a public nuisance may be instituted by any one of the followings:
By the Advocate-General acting ex officio; or
By him at the instance of two or more persons or
by two or more persons with the leave of the Court.

· Private Nuisance
Private nuisance is the using or authorising the use of one’s property, or of anything under
one’s control, so as to injuriously affect an owner or occupier of property by physically
injuring his property or affecting its enjoyment by interfering materially with his health,
comfort or convenience.

In contrast to public nuisance, private nuisance is an act affecting some particular individual
or individuals as distinguished from the public at large. The remedy in an action for private
nuisance is a civil action for damages or an injunction or both and not an indictment.