Winfield defines Nuisance as:- “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 nothing but law of neighbourhood which is based on the maxim “Sic uteretuo ut alienum non laedas” which means “So use your own property so not to injure your neighbours.”
Essential elements of Private nuisance are as follows:
1. Continous interference: Temporary interference does not amount to actionable nuisances. In Stone vs. Bolton (imp), the Plaintiff was standing on a Highway and injured by a Cricket ball hit from the defendant’s grounds. Here in this case plaintiff could not succeed in action for nuisance. Justice Oliver said: “An isolated act of hitting cricket ball on to a road cannot amount to nuisance…. A nuisance must be a state of affairs, however, temporary, and not merely an isolated happening.”
2. Unlawful interference: Unlawful interference of defendant’s conduct depends upon the element of unreasonabless which Plaintiff must prove. These elements are as follows:
a) Defendant’s conduct:
b) Locality: That in particular area defendant’s activities will amount to nuisance. Sturges vs. Bridgman (1879), an area which is accustomed to the noise and pollution of heavy industry is less likely to provide fertile ground for sucessful private nuisance claims than a quiet residential suburban, but it does not mean that people living in industrial area will not succeed in nuisance action.
c) Sensitivity of the Plaintiff: In Robinson vs. Kilvert (1889), the Plaintiff claim was for damage to abnormally sensitive paper stored in a cellar which was affected by heat from neighbour’s premises. The claim failed because ordinary paper would have been unaffected by the temparature. Also, in Eastern and Soth African Telegraph Co. Ltd. vs. Capetown Tramway Co. (1902), it was observed that “a man cannot increase the liabilities of his neighbour by applying his own property to special use, whether for business or pleasure.”
d) Malice: Malicious behaviour on the part of defendant will contribute to the impression that his or her conduct has not been reasonable, and may amount to nuisance.
In Hollywood Silver Fox Farm vs. Emmett (1936), the defendant deliberately fired gun close to the boundary of neighbour’s land where silver foxes were kept. The silver foxws are nervous animals and likely to eat their young if frightened. So frightened by gun shot they ate their young ones. The court held defendant liable of nuisance since he interfered with the breeding habits of the animal.
So it means here that court accepted and applied Sic uteretuo ut alienum non laedes, i.e., what might otherwise have been lawful act on the defendant’s own land had become a nuisance because of the malice involved. (imp)
3. Indirect interference: In St. Helen’s Smelting Co. vs. Tipping, it was said that indirect interference include smoke and fumes drift into the neighbouring land. In Pride of derby Angling vs. British Celanese (1953), it was said that the pollution of rivers with factory effluent amounts to indirect interference. Futher, a person can bring an action for damages caused to his property by overhanging branches of a tree on his neighbour’s land or by its root which burrow under the ground.
4. An interference with use or enjoyment of land: Example are rights of way and other easements, profit a prendre, right of support etc.
5. Damage: Nuisance is not actionable per se, i.e., it means in order to succees in nuisance the Plaintiff must prove that damage has been suffered.
Defences under nuisance:
1. Prescription- If the nuisance continues for 20 years without interruption then the defendant will escape liability. This 20 years time will begin to run only when Plaintiff realises nuisance.
2. Statutory authority- Usually when states are performing the function which prima facie of public welfare nature, then the Courts have granted the defence of statutory authority in case of nuisance. However, it is clear from Ratanlal Municipality case that if the concerned statutory authority is negligent in its function then this defence will not be of any use to the statutory authority.
Ineffectual Defences under nuisance:
1. Public good
2. Reasonable care
3. Plaintiff coming to the place of nuisance
Remedies available in nuisance:
1. Trespass and Nuisance:
i) Trespass is direct interference whereas Nuisance is indirect interference.
ii) Trespass is interference with possession whereas Nuisance is interference with use or enjoyment.
Iii) Trespass is committed thorough tangible objects whereas Nuisance can also be committed through intangible objects (Example- Gas, Smoke etc)
iv) Trespass is actionable per se (i.e., do not require the allegations or proof of additional facts to constitute a cause of action) whereas in Nuisance damage has to be proved.
-Trespass quare olasum fregit means “Entry to other’s land”
-Trespass de botis asportatis means “Taking another’s goods”
2. Public Nuisance and Private Nuisance:
i) Public Nuisance is related to Public genrally while Private Nuisance is related some indiviuals.
ii) Public Nuisance affects common rights while Private Nuisance affects particular section of the community.
iii) Public Nuisance is a crime under section 268 IPC while Private Nuisance is not a crime but civil.
iv) In Public Nuisance lapse of time is no excuse but under Private Nuisance lapse of time is an excuse. (Example- Prescriptory rights)