Public Nuisance & Private Nuisance I Law of Tort

 

SYNOPSIS

• Introduction
• Public nuisance
• Case laws regarding public nuisance
• Private Nuisance
• Case laws regarding private nuisance
• Defenses
• Conclusion

 

FOR LAW STUDENTS: REPEATED EXAM QUESTIONS RELATING TO PUBLIC & PRIVATE NUISANCE! 

1. What is the difference between trespass and nuisance?

2. Explain different kinds of nuisance.

3. Give case laws regarding Public Nuisance and Private Nuisance.

 

INTRODUCTION

Nuisance is a tort which means interfering unlawfully with someone’s personal use or enjoyment of land, or someone’s right or any connection if that person is having on it.

Acts that interfere regarding comfort, health or safety are few examples of Nuisance.

Interference can be in various forms like:- making noises, vibrations, heat, smoke, a smell of any kind, fumes, water, gas, electricity, evacuation, disease-producing germs, etc.

There is a difference between Nuisance and Trespass.  Trespass is –

1. when it is direct
2. with the land on which the plaintiff has his possession.

• It can be through some material or any tangible objects.

Both nuisance and trespass are similar in cases as the plaintiff has to show his possession over the land.

When an interference is direct, it will amount to trespass.

When the interference is consequential, it amounts to a nuisance.

For example– If a tree is planted on someone else’s land, it amounts to trespass but when the tree is planted on our own land but its roots or branches extends over the land of another person, it will then amount to a nuisance.

 

Kinds of Nuisance :

1. Public Nuisance
2. Private Nuisance

 

Public Nuisance

Public Nuisance is also known as common Nuisance. Public Nuisance leads to a  commission of a crime.

it basically means interference with the rights of the public and is a punishable offense.

Examples can be obstructing a public way by digging a trench or by the way of constructing structures. These kinds of obstructions cause inconvenience to many people but no one is allowed to take a civil action for, otherwise hundreds of actions will be taken for one public nuisance. So, to avoid multiple suits, the law makes public nuisance only an offense under criminal law.

 

Case Laws

 

1. Ram Raj Singh v. Babulal AIR 1982 All. 285

In this case, the defendant had created a brick grinding machine adjoining to the premises of the plaintiff, who was a medical practitioner. The brick grinding machine generated lots of dust, which in turn polluted the atmosphere. The dust that was generated due to the brick grinding machine entered the consulting chamber of the plaintiff and caused physical inconvenience to the plaintiff and his patients and a red coating on the clothes which was clearly visible. It was held that special damages were proved regarding the plaintiff and a permanent injunction was issued against the defendant which would restrain him from running his brick grinding machine there.

2. Rose v. Milles (1815) 4 M &S. 101

The defendant had wrongfully moored his barge across the public navigable neck. This had blocked the way of plaintiff’s barges and plaintiff had to suffer expenditure in unloading the cargo and transporting it to the same land. it was held that special damages are caused by the plaintiff.

 

3. Winterbottom v. Lord Derby (1857) L.R. 2 exch. 316

In this case, the defendant had blocked a public footpath. The plaintiff had alleged that sometimes he had to take a different route or sometimes he had to incur specific expenditure to remove the obstruction. It was held that he could not recover as he had not incurred damages more than that of the public.

 

Private Nuisance

Nuisance is not only public but also private. Private Nuisance is a civil wrong. There are certain essentials to Private nuisance, they are as follows:-

1. Unreasonable Interference
2. Interference with the use or enjoyment of land
3. Damage

 

1. Unreasonable interference

Interference that causes damage to the property of the plaintiff or any discomfort regarding the enjoyment of the property by the plaintiff. Every interference doesn’t amount to a nuisance. For nuisance, the interference should be unreasonable.

 

Case Laws

 

1. Radhey Shyam v. Gur Prasad AIR 1978 All. 86

Gur Prasad and another had filed a suit against Radhey Shyam and others for a permanent injunction to restrain them from installing and running a flour mill in their premises. It was alleged that the mill was causing a nuisance to the plaintiff, who was residing on the first floor of the same premises. The plaintiff was losing peace on account of noises generated by the flour mill and it was also affecting their health severely. It was held that by keeping the mill in a residential area is had created a nuisance for the plaintiff and affected his health as well. The plaintiff was entitled to an injunction against the defendants.

2. Interference with the use or enjoyment of Land

In this interference can be caused in  ways as follows:

1. Injury to property

When there is an unauthorized interference with someone else’s property via some objects, whether tangible or intangible, which causes damage to the property will be treated as a nuisance.

1. Interference with the right of support of land and buildings

person has a natural right to have his land being supported by his neighbor and therefore if we remove any support, lateral or beneath is causing a nuisance. this natural right is only available in case of land and not in buildings.

1. Injury to comfort or health

When there is substantial interference with the comfort and convenience of using the premises will be constituted as a nuisance. If there is just a small interference that wouldn’t be enough. There should be a serious interference causing inconvenience to the neighbors, only then it would be considered as a nuisance.

3. Damages

Unlike trespass which is actionable, in case of a nuisance it needs to be proved that damage has been incurred due to the nuisance. In case of public damage, if a person proves he has been affected more than what the general public has suffered then only he will be entitled to special damages otherwise not. In case of a Private nuisance, the damage is one of the essentials but the law often presumes it.

 

Case Laws

1. Helen’s Smelting Co. v. Tipping

In this case, the fumes from the defendant company’s work had caused damage to the trees of the plaintiff. Such kind of damage caused to the property was serious in nature that made the defendant to be held liable in this case.

 

2. Ushaben v. Bhagya Laxmi Chitra Mandir

The plaintiff sued the defendant for a permanent injunction to restrain them from showing the film Jai Santoshi Maa. It was said that the content of the film was a nuisance because the plaintiff’s religious sentiments were hurt as Goddess Saraswati, Lakshmi and Parvati were shown as jealous and were ridiculed. It was held that hurt to religious feelings was not an actionable wrong.

 

DEFENCES  

There are different kinds of defenses for nuisance, as follows :

Effectual defenses  

1. Prescriptive right to commit a nuisance.

A right to do an act can be considered as a nuisance or he may acquire a prescription for that. If a person continues to do an activity on the land of the other person for about 20 years or more then that person acquires a legal right by the way of prescription for continuing that activity in the future as well.

2. Statutory Authority.

When the act has been done under the given statute, it is a complete defense. If the nuisance I caused has been authorized by a statute to do it then it is not liable under the law of torts.

Ineffectual Defences

1. Nuisance due to acts of others

When the act of two or more people who are working independently, may cause nuisance, although the act has not been committed by a single person. In such cases, only a single person cannot be sued, rather everyone involved in the act will be held liable as the act was committed collectively and not solely.

2. Public Good

It is not a defense in a case where it is been causing a nuisance to particularly a single person and doing good to the rest of the public, otherwise, no public utility undertaking could be liable for the unlawful interference with the rights of individuals.

3. Reasonable Care

Use of reasonable care to prevent a nuisance is not a defense.

4. Plaintiff coming to nuisance.

Where the plaintiff himself comes to the place of nuisance cannot fall under defense. A person cannot be expected to refrain from buying a land that already has nuisance. The plaintiff can recover even if the nuisance has been going on before he went to that place.

 

1. Are trespass and nuisance same?

NO, they are not the same. Trespass is direct and nuisance is consequential.  

2. What type of offense is a public nuisance and private nuisance?

Public nuisance is a crime whereas private nuisance is a civil wrong.

 

Photo by Milin John