Nuisance – public nuisance & private nuisance under law of torts

Nuisance – public nuisance & private nuisance under law of torts

Meaning of Nuisance 

The word nuisance is derived from the French word nuire, which means ‘to do hurt, or to annoy’. Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. For example any act of a person that interferes with the comfort, health or safety of any other person is a Nuisance.

Distinguished between Nuisance and trespass 

Both nuisance and trespass are similar but two gets coincide, as some kind of nuisance being also continues as trespass. The difference between them are –

  1. If interference is direct, the wrong is trespass it interference is consequential, it amounts to nuisance. For example – Planting a tree on another’s land is trespass but when a person plants a tree over his own land and the roof or the branches project over the land of another person then that amounts to nuisance.
  2. Trespass is the interference with a person’s possession of land. In nuisance, there is interference with a person’s use or enjoyment of land and such interference with the use or enjoyment could be there without any interference with the possession. For example – a person creates offensive smell or noise in his own land can cause nuisance to his neighbor.
  3. In trespass, interference is always through some material or tangible objects. Nuisance can be committed through the medium of intangible objects also like vibration, noise, smoke, or smoke etc.
  4. A trespass is actionable per se, but in an action for nuisance special damaged is required to be proved.
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Kinds of Nuisance 

Nuisance is of two types –

  • Public Nuisance
  • Private Nuisance

Public Nuisance

A public nuisance is an act affecting the public at large, or to a particular group, or to a particular area and that act must interferes with rights, which the members of that particular community might otherwise enjoy. Therefore, it is also a criminal wrong and is punishable as an offence.

Example: obstructing a public way by digging a trench or constructing structures on it.

Although a large number of people are affected with the interference but no one is allowed to bring a civil action for the same. Only, when any person suffers some special damage or a particular damage, different from what is inflicted upon public as a whole, and which also become a private nuisance, then a civil right of action is available to that injured person. The only thing that is required to be proved to bring a civil suit is that the person has suffered some special damage

(a damage caused to a party in contradiction to the public at large) with respect to others.

Private Nuisance 

A Private nuisance is an act affecting only an individual and is therefore a civil wrong. Any act done here, don’t affect public at large but only affect a private or an individual person.

To constitute the tort of private nuisance, the following essential are required to be proved –

  1. Unreasonable/ unlawful interference.
  2. With the use or enjoyment of land, or some right over or in connection with the land.
  3. Damage
  • Note – For an act to constitute as a private nuisance it is necessary that it must be prima facie wrongful or there should be an unlawful interference with a person or his property. Every interference is not a nuisance. To constitute a nuisance, it is necessary that interference causes damage to the plaintiff’s property or may cause personal discomfort to the plaintiff with the enjoyment of the property.
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Case studies –

Radhey Shyam v. Gur Prasad

In this case, Gur Prasad and others filed the case against the Radhey Shyam and others for the permanent injunction to restraint them from installing and running a flour premise in their premise. It was alleged that the said mill will cause nuisance to the people living in first floor as they would lose their peace because of the noise that will come out from the flour mill, adversely affecting the health of the people as the consequence of the same. It was held that the flour mill mounts to the nuisance as it would seriously interfere with the health of the plaintiff and an injunction was entitled against the defendant.

Ushaben v. Bhagya Laxmi Chitra Mandir

In this case, appellant sued the respondent for a permanent injunction to restraint them from exhibiting the film ‘Jai Santoshi Maa’. It was contended that this film hurt the religious feeling as Goddesses Saraswati, Laxmi and Parvati were described as jealous and were ridiculed. It was held that hurt to religious feeling was not an actionable wrong. Moreover, the plaintiff was free not to see the movie again. The convenience was considered to be in the favor of defendant and there was no nuisance was caused.

Soltau v. De Held

In this case, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the chapel bell 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.

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Noble v Harrison

In this case, the defendant occupier was held not liable for the nuisance, when the plaintiff passing along the highway, when the plaintiff was hit by a falling branch of a tree standing on the defendant’s land and overhanging on the highway. It was found that the branch fell as result of the latent defect which could not be discovered by any reasonable inspection. The defendant was, therefore, not held liable for nuisance.

Defenses for Nuisance

A number of defenses can be pleaded in an action for nuisance. Some of the defenses have been recognized by the court as valid defense and some have been rejected. Therefore, they have been recognized as effectual and ineffectual defenses.

  1. Effectual defenses the defenses that are declared valid by the court are termed as effectual defenses. It include-
  • Perspective right to commit nuisance
  • Statutory authority
  1. Ineffectual defenses The defenses that are declared invalid by the court are termed as ineffectual defenses. It include-
  • Nuisance due to the act of others
  • Public good
  • Reasonable care
  • Plaintiff coming to nuisance

Author: Navya Agarwal,
College - GGSIPU; 2nd year

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