Defenses of Nuisance

Defenses of nuisance

Following are the valid defences to an action for nuisance

It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.

a. Prescription

A title acquired by use and time, and allowed by Law; as when a man claims any thing, because he, his ancestors, or they whose estate he hath, have had possession for the period prescribed by law. This is there in Section 26, Limitation Act & Section 15 Easements Act.

Three things are necessary to establish a right by prescription:

1. Use and occupation or enjoyment;

2. The identity of the thing enjoyed;

3. That it should be adverse to the rights of some other person.

A special defense available in the case of nuisance is prescription if it has been peaceable and openly enjoyed as an easement and as of right without interruption and for twenty years. After a nuisance has been continuously in existence for twenty years prescriptive right to continue it is acquired as an easement appurtenant to the land on which it exists. On the expiration of this period the nuisance becomes legalized ab initio, as if it had been authorized in its commencement by a grant from the owner of servant land. The time runs, not from the day when the cause of the nuisance began but from the day when the nuisance began.

In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy machinery for his business, for more than 20 years. B, a physician neighbor, constructed a consulting room adjoining A’s house only shortly before the present action and then found himself seriously inconvenienced by the noise of A’s machinery.

B brought an action against A for abatement of the nuisance. It was held that B must succeed. A cannot plead prescription since time runs not from the date when the cause of the nuisance began but from the day when the nuisance began.

b. Statutory Authority

Where a statute has authorized the doing of a particular act or the use of land in a particular way, all remedies whether by way of indictment or action, are taken away; provided that every reasonable precaution consistent with the exercise of the statutory powers has been taken. Statutory authority may be either absolute or conditional.

In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily cause a nuisance or any other form of injury.

In case of conditional authority the State allows the act to be done only if it can be without causing nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due regard for private rights.

In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, The defendants who had authority by Statute to locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.

V. Remedies for nuisance

The remedies available for nuisance are as follows:

i. Injunction-

It maybe a temporary injunction which is granted on an interim basis and that maybe reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction. However the granting of an injunction is again the discretion of the Court

ii. Damages-

The damages offered to the aggrieved party could be nominal damages i.e. damages just to recognize that technically some harm has been caused to plaintiff or statutory damages i.e. where the amount of damages is as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.

iii. Abatement-

 It means the summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings. It is not a remedy which the law favors and is not usually advisable. E.g. - The plaintiff himself cuts off the branch of tree of the defendant which hangs over his premises and causes nuisance to him.

VI. Conclusion

The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man’s daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily. Indian Courts in the matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of the common law system along with creating their own precedents. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.

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Kinds of Nuisance

Kinds of Nuisance

I. Introduction

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.

II. Definition

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”.

III. Kinds of nuisance

Nuisance is of two kinds:

A. 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, Carrying on trade which cause intolerable noises, Keeping an inflammable substance like gunpowder in large quantities, Lister’s case, Drawing water in a can from a filthy source.

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.

B. Private Nuisance

Private nuisance is the using or authorizing 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.

VI. Conclusion

The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man’s daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily. Indian Courts in the matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of the common law system along with creating their own precedents. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.

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Tort of Nuisance | Essentials of Nuisance

Tort of Nuisance

                                                 

I. Introduction

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.

II. Definition

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”. 

I. Elements of  Nuisance

Nuisance is an unlawful interference and/or annoyance which cause damages to an occupier or owner of land in respect of his enjoyment of the land.

Thus the elements of  nuisance are:

1. unreasonable or unlawful interference;

2. such interference is with the use or enjoyment of land, or some right over, or in connection with the land; and

3. damage.

Nuisance may be with respect to property or personal physical discomfort.

1. Injury to property

In the case of damage to property any sensible injury will be sufficient to support an action.

In Ram Raj Singh v. Babulal, AIR 1982 All. 285:, the plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients.

The Court held that when it is established that sufficient quantity of dust from brick powdering mill set up near a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular to himself. That means he proved special damage.

In Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL):, the respondent was owner of a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighboring building. The transferee of the building of the building, after the cracks were detected, was held entitled to recover reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused by the trees.

2. Physical discomfort

In case of physical discomfort there are two essential conditions to be fulfilled:

a. In excess of the natural and ordinary course of enjoyment of the property –

In order to be able to bring an action for nuisance to property the person injured must have either a proprietary or possessory interest in the premises affected by the nuisance.

b. Materially interfering with the ordinary comfort of human existence

The discomfort should be such as an ordinary or average person in the locality and environment would not put up with or tolerate.

Following factors are material in deciding whether the discomfort is substantial:

Ø  its degree or intensity;

Ø  its duration;

Ø  its locality;

Ø  the mode of user of the property.

In Datta Mal Chiranji Lal v. Lodh Prasad, AIR 1960 All 632: The defendant established an electric flour mill adjacent to the plaintiff’s house in a bazaar locality and the running of the mill produced such noise and vibrations that the plaintiff and his family, did not get peace and freedom from noise to follow their normal avocations during the day. They did not have a quiet rest at night also.

It was held that the running of the mill amounted to a private nuisance which should not be permitted.

In Radhey Shiam v. Gur Prasad Sharma, AIR 1978 All 86: It was held by the Allahabad High Court held that a permanent injunction may be issued against the defendant if in a noisy locality there is substantial addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.

IV. Defenses to nuisance

Following are the valid defences to an action for nuisance

It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.

VI. Conclusion

The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man’s daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily. Indian Courts in the matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of the common law system along with creating their own precedents. This has resulted in a sound system of law being developed that ensures fairness and well being of all i.e. the parties and the society at large.

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Defenses for Tort of Negligence

 Defenses for Tort of Negligence

            Following are the defenses for the tort of negligence.

A. Act of God

Act of God includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples of Act of God are the falling of a tree, a flash of lightening, a tornado or a flood.

The essential conditions of this defenses are,

(1) the event causing damages was the result of natural forces without any intervention from human agency, and

(2) the event was such that the possibility of such an event could not be recognized by using reasonable care and foresight.

Nicholas v. Marshland

In this case the defendant constructed an artificial lake. Due to the heavy rainfall in one night the water flooded over the lake and washed out the three Bridges of the plaintiff. Consequently the plaintiff filed a suit against the defendant, but the defendant took the defense of act of God and he was succeed in his claim.

B. Inevitable Accident

All recent authorities support the view that  'inevitable  accident’ “negatives  liability.  An 'inevitable accident' is that which could not possibly be prevented by the exercise of ordinary care,  caution  and  skill.  It means  an  accident  physically  unavoidable.  It  does  not  apply  to Anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of  the kind and degree of care necessary  to  the exigency, and  the Circumstances,  in which he was placed. If  in  the performance of a  lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.

C. Contributory negligence

All  recent  authorities  support  the  view  that  'inevitable  accident’ “negatives  liability.  An 'inevitable accident' is that which could not possibly be prevented by the exercise of ordinary care,  caution  and  skill.  It means  an  accident  physically  unavoidable.  It  does  not  apply  to anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of  the kind and degree of care necessary  to  the exigency, and  the circumstances,  in which he was placed. If  in  the performance of a  lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of

action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.

Harris v. Toronto Transit Commission

In the case the boy was in the bus while he was projecting his hand out of the window he sustained injury from the coming vehicle. The driver warned him repeatedly but the boy failed to evict his hand from the window. Plaintiff filed the suit for the tort of negligence, but the defendant took the defense of contributory negligence and he was succeed.

1. Last opportunity rule

By this rule the person who is having a later opportunity to avoid the accident is liable for the tort of negligence. This principle is originated from the defense of contributory negligence.

Davis v. Mann

In this case the plaintiff tied the four feet of the donkey and left it on the narrow highway. The defendant while driving his two wheeler very fast dashed the donkey and donkey died. The owner of the donkey filed a suit against the motor cyclist. The motor cyclist took the defense of contributory negligence but the court applied the principle of last opportunity rule and held liable to the motor cyclist because he was having a later opportunity to avoid the accident by applying the brake. 

2. Apportionment of Damages

According to this principle the liability of the defendant and the plaintiff will be decided in percentage, and according to the percentage of negligent act of the defendant the court award  compensation to the plaintiff.

Vidya Devi v M. P. Road Transport Corp.

D. Exception to the defense of Contributory Negligence.

            The defense of contributory negligence cannot be alleged in the following cases.

I. Doctrine of alternative danger.

            There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.

Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.

II. Contributory negligence by child.

            The defense of contributory negligence cannot be taken against the child. Because the care which is expected in case of child is different as expected in case of major.

III. Presumption that others are careful.

            The defense of contributory negligence cannot be taken if the presumption is that the others are careful.

Conclusion.

            When the person is having a duty to take care and care not taken his liability will arise for the tort of negligence. But the defendant can avoid his liability if his act comes under any of the above defenses.

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