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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