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.