Detail of NUISANCE

NUISANCE

NUISANCE

"Nuisance may be described as unlawful interference with a person's use or enjoyment of land or of some right over, or in connection with, it." (Winfield)

Early remedies

The early remedies in English law for nuisance were the following:

1.    The assize of nuisance which used to be issued to redress both the injuries to servitudes stricto sensu  and to the common rights.

2.    Abatement

3.    The action quod permittat prosternere. If the land on which the nuisance was created was alienated the plaintiff could sue this action, viz., the writ which commanded the defendant to allow the plaintiff to abate the nuisance.

4.    The writ of tespass.

5.    The action upon the cases for nuisance. In the former action of assize of nuisance and quod permittat prosternere, only freeholders were entitled to sue for the writ. In this action there was no such restriction but it can be brought only for damages and for abatement.

6.    Injunction.

Modern remedies

Of these various remedies of the past, only three continue to be in force in modern times. They are: (1) Abatement, (2) injunction, (3) damages.

Public and private nuisance

Nuisances are usually divided into two classes, public and private. A public or common nuisance is one which affects the public and is an annoyance to the people generally who come in contract with it. A private nuisance is one which injuries a private person exclusively and he must show special damage which is in excess of the public inconvenience. The same act may amount to both. Public nuisance is actionable by a representative of the state whereas private nuisance is only a civil wrong actionable at the instance of the private individual who suffered. Thus in order to entitle a plaintiff to bring an action for public nuisance he must show special damage. Thus in Rose v. Miles the defendant obstructed a public canal by putting his barges across it so that the plaintiff who came along that route with his goods had to land them at across it so that the plaintiff who came along that route with his goods had to land them at the obstruction and engage other conveyance to transport his cargo. He brought a suit by way of damages for the recovery of the additional expenses that he had to incur on account of the obstruction and damages were allowed to the plaintiff for the private nuisance thus suffered by him.

      In Sanjay Phophaliya v. State of Rajasthan  the removal of public nuisance caused due to roaming of stray animals on public roads was held to be the obligatory duty of the municipality, irrespective of any factor such as financial inability or unavailability of staff. The court also said that in case of negligence or failure in discharging of duties by the staff of the municipality disciplinary action could be taken against such persons.

     In general, however, a public nuisance is proved by the cumulative effect which it is shown to have had on the people living within its sphere of influence. In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances. Deposit of oil on the foreshore of an estuary was held to be a public nuisance in Southport Corpn v. Esso Petroleum Co.

     Interference with television reception by the erection of a tall building which causes loss of clear visual prospects caused by a tall building is not such an interference with the use and enjoyment of land as to constitute actionable public or private nuisance.

Two kinds of private nuisance

Private nuisances are generally of two types, viz., (1) any wrongful disturbance of an easement or other servitude attached to the land, and (2) the act of wrongfully causing or allowing the escape of deleterious things into another person's land, for example, water, smoke, smell, fumes, gas, noise, heat, vibrations, electricity, disease germs, animals and vegetation.

Principle

All nuisances are caused by an act or omission whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land; whether by physical damage to the land or by other interference with the enjoyment of the land, or with the exercise of an easement, profit or other similar right, or with his health, comfort or convenience as occupier of such land. The basis of the law of nuisance is the maxim sic utere tuo ut allienum non laedas: a man must not make such use of his property as unreasonably and unnecessarily to cause inconvenience to his neighbour.

Essentials of nuisance

Interference

In private nuisance, especially of the second type, in order to entitle the plaintiff to sue for damages there must be some interference with the use or enjoyment of land or of some right over, or in connection with, it causing damage to the plaintiff. The interference may take place in different ways such as through noise, smell, pollution of air or water, etc.

     A policy of "give and take", "live and let live" alone would make life easy and happy in all places where people have to live together. The law too has given recognition to this fact of social life. Whenever there is interference with personal comforts, it will be reckoned "not merely according to elegant and dainty modes and habits of living but according to plain and sober and simple notions among the English people." Essentially, reasonable amount of tolerance to certain interferences must be exhibited.

Reasonableness

Reasonableness is considered as a test in this tort as well as in that of negligence. But the standard of duty to take care is somewhat higher than in the case of negligence. In the latter classes of cases a defendant will not become liable if he had taken reasonable care under the circumstances. But in nuisance even if a person has taken all possible care under the circumstances he will still be liable. Reasonableness in nuisance is something more than merely "taking proper care".

    In St. Helen's Smelting Co. v. Tipping Mellor, J. said: "Every man is bound to use his own property in such a manner as not to  injure the property of his neighbour, unless by the lapse of a certain period of time he has acquired a prescriptive right to do so. But the law does not regard trifling inconveniences, everything must be looked at from a reasonable point of view.

    The average man's standard of comfort and convenience involves the toleration of an act done by his neighbours in the course of the ordinary and reasonable use of his property. The affairs of life in a dense neighbourhood cannot be carried on without mutual sacrifices of comfort, and in all actions for discomfort the law must regard the principle of mutual adjustment, and the notion that the degree of discomfort which might sustain an action under some circumstances must therefore do so under all circumstances is as untenable as the notion that if the act complained of was done in a convenient time and place, it must therefore by justified whatever was the degree of annoyance that was occasioned thereby.

Abnormal sensitiveness

Law will not recognise and give compensation to a person who complains of  a nuisance arising from abnormal sensitiveness of his person or property. Extraordinary and special requirements are not protected by law.

    Robison v. Kilvert  is a case of injury to delicate property. The plaintiff who occupied the upper floor of a building had stocked very delicate thin brown paper there. The defendant, who occupied the first floor of the same building underneath the plaintiff's, was a manufacturer of  paper boxes and had to make the air in his room hot and dry for the conduct of his business. This process made the plaintiff's room also too hot for the delicate thin paper and caused considerable damage to it by drying and diminishing its value. It was held that the defendant was not liable for the nuisance.

Temporary injury

If the injury of the plaintiff is only temporary, say "fleeting or evanescent" or too trivial, an injunction will not be granted. Again, it is a general condition in the matter of injunction that it should not be granted where damages would form an adequate remedy. Thus in Swaine v. G.N. Rly. Co. the Court of Chancery refused to grant an injunction where the plaintiff complained of the presence of manure heaps which became occasionally offensive on account of dead cats and dogs in it and the tardiness of the authorities in removing the heaps.

Malice

It has already been stated before that unlike the other branches of tort, in nuisance malice is material. A lawful act may become an unlawful nuisance if the doer was actuated by malicious motive. For example, in Christie v. Davey the plaintiff was a musician who lived in the next room adjoining that of the defendant. There was only one party-wall between them. The defendant, being extremely annoyed at the continuous music classes held by the plaintiff in his room during even untimely hours, interrupted the plaintiff's lessons by knocking on the party-wall, beating on trays, whistling and shrieking. The court issued an injunction because the defendant had acted deliberately and maliciously for the purpose of annoying the plaintiff.

     MacNaughten, J. followed Christie v. Davey (supra) in Hollywood Silver Fox Farm Ltd. v. Emmett where the learned Judge granted an injunction and also damages. Thus, malice is material in the law of nuisance.

    Highways.- It is a general principle of law that no action is maintainable by an individual for non-repair of a highway. Maintenance of public roads is the duty of Governments and if actions for failure of public duties were allowed, there would be no end to such suits. Now the matter is largely governed by legislation, for there are various statutes in the State which carefully impose those duties on local authorities of manufacturing public roads, markets and canals in safe and sanitary conditions.

    Temporary interference with highways is permissible which is absolutely necessary for carrying on repairs on buildings by the side of the road. Again, if shops and houses are to get supplies, vehicles and persons must necessarily atop at the roadside to deliver them. Thus in Harper v. Haden it was held that a person has got a right to obstruct a highway by the erection of a scaffolding and hoarding for the purpose of repairing his house there.

    But in the English decision Parish v. Judd Edmund Davies, J. held that the mere fact that an unlit vehicle is found at night on a road is not sufficient to constitute a nuisance. Two further conditions should also be proved. Firstly, it must be shown that the vehicle was not merely an obstruction on the road, but it constituted a danger on the road. Secondly, it must be shown that the vehicle became unlit by reason of some fault on the part of the persons responsible for the vehicle or that assuming that it initially became unlit without any fault on the part of the person responsible for the car, nevertheless he, thereafter, was guilty of some fault.

Picketing

In Hubbard v. Pitt the defendants were restrained by an interlocutory injunction from carrying on a picketing campaign in front of the plaintiff's premises in an action based on private nuisance.

Loss of custom

A shopkeeper by the side of a road is entitled to get damages for loss of custom arising from obstruction of the road before his shop. Thus, in Wilkes v. Hungerford Market Co., a bookseller who proved that his customers had been diverted from him by unlawful obstruction was able to recover damages.

     Again, in Fritz v. Habson, unreasonable obstruction of a private way leading from the highway to the houses and shop of a dealer in antiques was held actionable because it resulted in loss of custom.

Projections over highway  

The mere fact that a tree or a clock or a signboard projects over a highway from the land or building adjacent to it will not be actionable. Thus in Noble v. Harrison the occupier of land was held not liable when the branch of a beech tree growing on his land and overhanging a highway suddenly broke off owing to a latent defect not discoverable by any reasonably careful inspection and damaged the plaintiff's motor coach which was passing along the highway. With regard to artificial structures and projections the duty is more strict. Where a person died due to the fall of a branch of a tree near the road when he was passing by that road, it was held that the horticulture department of the municipal corporation was negligent in not performing its duty to carry out periodical inspections of the trees in order to see that the road was safe for its users and such adjoining trees as were dried and dead and/or had projecting branches which could prove to be dangerous to the passers-by were removed.

     In Municipal Corpn. of Delhi v. Subhagwanti a clock tower which was 80 years old collapsed in Chandni Chowk, Delhi causing the deaths of a number of persons. The Supreme Court held that the owner was legally responsible, irrespective of whether the damage was caused by a patent or a latent defect and the same principle is applicable to the owner of a tree standing by the side of a road. If damage is done owing to the collapse of a projection on the highway or by some other mischief traceable to it, the occupier of the premises on which it stood is liable if he know of the defect or ought, on investigation, to have known of it. At any rate this is the rule with respect to a thing that is naturally on the premises, e.g. a tree.

     When a tree, which had been dying for some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner was held liable.

The thing with which interference takes place

Private nuisance is in the nature of injuries to property, whether to easements, such as the obstruction of light or of rights of way, or of the diversion of a watercourse, or the withdrawal of a support from a house; or in other kinds of property as by noise, noxious vapours, smoke and things of the type. In all such cases the plaintiff, in order to maintain an action, must show some title to the thing to which the nuisance is alleged to have been caused.

Who can sue?

The list of persons who can sue is as follows:

1.    The occupier of land, i.e., the person in actual possession of it. A lodger is presumably not entitled to sue. A guest of the occupier cannot sue. The right to sue does not extend even to the occupier's wife, family and servants.

2.    The reversioner can sue if the nuisance is a permanent injury.

3.    The user of a highway can sue when the nuisance causes special damage to him.

Who can be sued?

The following persons can be sued:

Creator of nuisance

He who by himself or by his servants does a positive act of misfeasance and creates a nuisance is always liable for it, and for any continuance of it whether he be the owner, the occupier or a stranger; and notwithstanding the fact that it exists on land which is not in his occupation and that he has therefore no power to put an end to it. Thus, if any building obstructs ancient lights or interferes with any other servitude, the builder is liable no less than the occupier of the land on which the building stands. A person who has created a positive misfeasance on a piece of land will continue to be liable even though he had left occupation of the land subsequently. But the in all other cases, liability which is appurtenant to a particular piece of land lasts only so long as the occupation lasts on which it is based.

Occupier

The occupier of the premises, whether he be the tenant or landowner, is generally liable for the nuisance that exists on his land.

      An occupier of premises is liable not only for the acts of nuisance of those directly under his control but even of independent contractors.

Liability of occupier for trespasser's act

Although as a general rule an occupier is not liable for nuisance on his land created by trespassers, the tendency of modern decisions is to impose greater liability on occupiers of properties.

     The rule of immunity of the occupier of premises for nuisance created by the trespasser was however definitely rejected by the Judicial Committee of the Privy Council in an important decision. A tall redgum tree growing in the centre of the defendant's land was struck by lightning and began to burn. The defendant, after arranging to cut the tree, did not extinguish the fire with water but let it burn out. A wind revived the fire which spread to the plaintiff's property and caused damage. The defendant was held liable for damages. In an illuminating judgment Lord Wilberforce rejected the traditional policy of regarding occupation of land as a source of privilege and immunity.

      Thus as regards even omissions of nuisance created by a third party or by nature the occupier will be held liable. Once the occupier becomes aware of the nuisance and fails to remedy it within a reasonable time, he may be liable for any damage it may cause, either to his neighbour or to the user of the highway.

Landlord

In general, a landlord is not liable for a nuisance on the premises if he is not in occupation. The proper person to be sued in such a case is the tenant. But the landlord is liable in the following cases:

(a)   Where the landlord has expressly or impliedly authorised his tenant to create the nuisance. Thus in Harris v. James a landlord was held liable for nuisance caused by the act of his tenant in blasting operations and the burning of lime, on the ground that the land was let to him for that very purpose, which was necessarily a nuisance.

(b)   If the landlord knew of the nuisance before he let it to the tenant.

(c)    If he ought to have known of the nuisance before letting.

But the liability of the landlord will not exclude that of the tenant. In Willchick  v. Marks the plaintiff was walking along the highway when she was injured by the fall of a defective shutter from Y's house. X had let the house to Y were held liable.

(d)   If the landlord has undertaken the duty to repair the house let to the tenant, he will undoubtedly be liable. Hence in Payne v. Rogers the landlord was held liable where a house let by him to a tenant fell into a dangerous state of disrepair on account of the landlord's breach of the covenant in the lease to keep the house in good repair.

Whether the act in question constitutes nuisance or not cannot be determined merely by an abstract consideration of the act itself but by reference to all circumstances of the particular case.

Damages

In all cases of public nuisance the plaintiff should prove damages in order to enable him to bring an action. In cases of private nuisance damages will very often be presumed. Thus in Fay v. Prentice, where a cornice of the defendant's house projected over the plaintiff's garden and rainwater dripped from it on the garden, damage was presumed from the flow of water and the plaintiff was not put to the proof of it.

     Again, on damage need be proved in the case of nuisance to an easement or profit a prendre.

Defences to nuisance: Invalid defences

    (i) Coming to the nuisance is no defence.- It is no defence to say that the plaintiff himself came to the nuisance. What this means is that if the annoyance is unreasonable in that particular district, then the plaintiff can recover even if it had been going on there long before he came. In Bliss v. Hall the defendant had set up a tallow chandlery which emitted "diverse noisome, noxious and offensives vapours, fume, smells and stenches" to the discomfort of the plaintiff who had taken a house near it. It was held to be no defence that the business had been in existence for three years before the plaintiff's arrival, for he came to the house with all the rights which the common law affords and one of them is a right to wholesome air. But this does not mean that a person who lives in the heart of a large manufacturing town can reasonably expect the same purity of air or freedom from noise as in a secluded district.

   (ii) Usefulness or public benefit no defence.- It is also no defence to show that the trade or business in question is a useful one and one which is necessary in the public interest. Thus in Adams v. Ursell an injunction was granted restraining the defendants from opening a fried-fish shop in a residential street, although it was contended on behalf of the defendants that an injunction would cause great hardship to the defendants and to the poor people in the locality. The opening of a fish shop on the outskirts of a temple any be restrained as a nuisance, although there may be very many fish-eating poor people living nearby to whom the fish shop would confer great benefit.

   (iii) Contributory acts of others is no defence.- "It is no defence that the act of the defendant would not amount to a nuisance unless other persons acting independently of him did the same thing at the same time." (Salmond.) Thus if twenty factories pour out smoke and fumes into the atmosphere, the contribution of each may be very small, but the aggregate effect of all wound be to cause considerable harm and discomfort. In such a case each of the contributors is liable for nuisance and for his own proportion of the total damage.

   (iv) Suitable place no defence.- It is also no defence to an action for nuisance to show that the trade or business giving rise to the nuisance is carried on in a convenient place, although, as explained before, in considering whether or not a nuisance has been caused, the character of the neighbourhood is an element to be taken into account.

Valid defences

   (i) Prescriptive right to commit nuisance.- The right to commit a private nuisance may be acquired by twenty years' continuous use of the right to the knowledge of the other party. The period will begin to run only from the date of knowledge of the plaintiff with regard to the existence of the nuisance.

  (ii) Abatement of nuisance