NUISANCE

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.
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”.
Noise Pollution (V), In re, (2005) 5 SCC 733
Quietness and freedom from noise are indispensable to the full and free enjoyment of a
dwelling house. No proprietor has an absolute right to create noises upon his own land,
because any right which the law gives is qualified by the condition that it must not be
exercised to the nuisance of his neighbours or of the public. Any noise which has the effect
of materially interfering with the ordinary comforts of life, judged by the standard of a
reasonable man is nuisance.
How and when a nuisance created by noise becomes actionable has to be answered by
reference to its degree and the surrounding circumstances, the place and the time. Noise will
create an actionable nuisance only if it materially interferes with the ordinary comfort
of life, judged by ordinary, plain and simple notions, and having regard to the locality:
the question being one of degree in each case.

Distinction Between Nuisance and Trespass

1. Trespass is direct physical interference with the plaintiff’s possession of land through
some material or tangible object.
Nuisance is an injury to some right accessory to possession but no possession itself.
Illustration:
A right of way or light is an incorporeal right over property not amounting to possession of it,
and disturbance of it is a nuisance and not trespass.
2. Trespass is actionable per se, while nuisance is actionable only on proof of actual
damage. It means trespass and nuisance are mutually exclusive.
Simple entry on another’s property without causing him any other injury would be trespass.
In nuisance injury to the property of another or interference with his personal comfort or
enjoyment of property is necessary.
They may overlap when the injury is to possessory as well as to some right necessary to
possession.
Illustration:
Trespass of cattle discharge of noxious matter into a stream and ultimately on another’s land.
3. To cause a material and tangible loss to an object or to enter another person’s land is
trespass and not nuisance; but where the thing is not material and tangible or where though
material and tangible, it is not direct act of the defendant but merely consequential on his act,
the injury is not trespass but merely a nuisance actionable on proof of actual damage.
If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.
Illustration:
Planting a tree on another’s land is trespass, whereas when one plants a tree over his own
land and the roots or branches project into or over the land of another person, it is nuisance.
Essentials of Nuisance
In order that nuisance is actionable tort, it is essential that there should exist:
1. wrongful act/s;
2. damage or loss or inconvenience or annoyance caused to another. Inconvenience or
discomfort to be considered must be more than mere delicacy or fastidious and more than
producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or
inconvenience must be such which the law considers as substantial or material.
Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13
The plaintiffs’-appellants sued the defendants-respondents for a permanent injunction to
restrain them from exhibiting the film “Jai Santoshi Maa”. It was contended that exhibition of
the film was a nuisance because the plaintiff’s religious feelings were hurt as Goddesses
Saraswati, Laxmi and Parvati were defined as jealous and were ridiculed.
It was held that hurt to religious feelings was not an actionable wrong. Moreover the
plaintiff’s were free not to see the movie again.
Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145
The defendant’s depot dealt with fuel oil in its light from the chimneys projected from the
boiler house, acid smuts containing sulphate were emitted and were visible falling outside the
plaintiff’s house. There was proof that the smuts had damaged clothes hung out to dry in the
garden of the plaintiff’s house and also paint work of the plaintiff’s car which he kept on the
highway outside the door of his house. The depot emanated a pungent and nauseating smell
of oil which went beyond a background smell and was more than would affect a sensitive
person but the plaintiff had not suffered any injury in health from the smell. During the night
there was noise from the boilers which at its peak caused window and doors in the plaintiff’s
house to vibrate and prevented the plaintiff’s sleeping. An action was brought by the plaintiff
for nuisance by acid smuts, smell and noise.
The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or
smell.

Kinds of Nuisance
Nuisance is of two kinds:
A. Public (General or Common) Nuisance;
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance
defined by the Indian Penal Code.
Section 268 of the Indian Penal Code, defines it as an act or illegal omission which causes
any common injury, danger or annoyance, to the people in general who dwell, or occupy
property, in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
Simply speaking, public nuisance is an act affecting the public at large, or some considerable
portion of it; and it must interfere with rights which members of the community might
otherwise enjoy.
Thus acts which seriously interfere with the health, safety, comfort or convenience of the
public generally or which tend to degrade public morals have always been considered public
nuisance.
Carrying on trade which cause offensive smells, Malton Board of Health v. Malton
Manure Co., (1879) 4 Ex D 302;
Carrying on trade which cause intolerable noises, Lambton v. Mellish, (1894) 3 Ch 163;
Keeping an inflammable substance like gunpowder in large quantities, Lister’s case,
(1856) 1 D & B 118;
Drawing water in a can from a filthy source, Attorney General v. Hornby, (1806) 7 East
195
Organizing a pop festival, which caused noise and a large amount of traffic (Attorney
General of Ontario v. Orange, (1971) 21 DLR 257);
Blocking a canal (Rose v. Miles (1815) 4 M & S 101);
Queuing on a highway, so causing an obstruction (Lyons v. Gulliver (1914) 1 Ch 631),
Picketing on a highway (Thomas v. NUM (South Wales Area) (1985) 2 All ER 1),
Interference with navigation rights in the River Thames (Tate and Lyle Industries v. GLC
(1983) 1 All ER 1159)
Public nuisance can only be subject of one action, otherwise a party might be ruined by a
million suits. Further, it would give rise to multiplicity of litigation resulting in burdening the
judicial system.
Generally speaking, Public Nuisance is not a tort and thus does not give rise to civil action.
In the following circumstances, an individual may have a private right of action in respect a
public nuisance.
1. He must show a particular injury to himself beyond that which is suffered by the rest of
public i.e. he must show that he has suffered some damage more than what the general body
of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed,
but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.
Solatu v. De Held, (1851) 2 Sim NS 133
The plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was
the priest and the chapel bel was 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.
Leanse v. Egerton, (1943) 1 KB 323
The plaintiff, while walking on the highway was injured on a Tuesday by glass falling from a
window in an unoccupied house belonging to the defendant, the window having been broken
in an air raid during the previous Friday night. Owing to the fact that the offices of the
defendant’s agents were shut on the Saturday and the Sunday and to the difficulty of getting
labour during the week end, no steps to remedy the risk to passers by had been taken until the
Monday. The owner had no actual knowledge of the state of the premises.
It was held that the defendant must be presumed to have knowledge of the existence of the
nuisance, that he had failed to take reasonable steps to bring it to an end although he had
ample time to do so, and that, therefore, he had “continued” it and was liable to the plaintiff.
Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894
In an action at the instance of the Attorney General, it was held that the nuisance form
vibration causing personal discomfort was sufficiently widespread to amount to a public
nuisance and that injunction was rightly granted against the quarry owners restraining them
from carrying on their operations.
Without Proving Special Damage
In India under Section 91 of the Civil Procedure Code, allows civil action without the proof
of special damage. It reads as follows:
“S. 91. [(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect,
the public, a suit for a declaration and injunction or for such other relief as may be
appropriate in the circumstances of the case, may be instituted-
-by the Advocate General, or
-with the leave of the court, by two or more persons, even though no special damage has been
caused to such persons by reason of such public nuisance or other wrongful act.]
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions.”
Thus a suit in respect of a public nuisance may be instituted by any one of the followings:
-By the Advocate-General acting ex officio; or
-By him at the instance of two or more persons or
-by two or more persons with the leave of the Court.
B. Private Nuisance
Private nuisance is the using or authorising the use of one’s property, or of anything under
one’s control, so as to injuriously affect an owner or occupier of property by physically
injuring his property or affecting its enjoyment by interfering materially with his health,
comfort or convenience.
In contrast to public nuisance, private nuisance is an act affecting some particular
individual or individuals as distinguished from the public at large.
The remedy in an action for private nuisance is a civil action for damages or an injunction or
both and not an indictment.
Elements of Private Nuisance
Private 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 private 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.
St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642
The fumes from the defendant’s manufacturing work damaged plaintiff’s trees and shrubs.
The Court held that such damages being an injury to property gave rise to a cause of action.
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.
Hollywood Silver Fox Farm Ltd v Emmett, (1936) 2 KB 468
A carried on the business of breeding silver foxes on his land. During the breeding season the
vixens are very nervous and liable if disturbed, either to refuse to breed, or to miscarry or to
kill their young. B, an adjoining landowner, maliciously caused his son to discharge guns on
his own land as near as possible to the breeding pens for the purpose of disturbing A’s vixens.
A filed a suit for injunction against B and was successful.
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 neighbouring building. The transfree 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:
In excess of the natural and ordinary course of enjoyment of the property i.e. to say the
interference must be with the enjoyment or use of land
Materially interfering with the ordinary comfort of human existence.
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:
 its degree or intensity;

 its duration;

 its locality;

 the mode of user of the property.

Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436

An injunction was granted to prevent a gas company from manufacturing gas in such a close
proximity to the premises of the plaintiff, a market gardener, and in such a manner as to
injure his garden produce by the escape of noxious matter.
Shots Iron Co. v. Inglis, (1882) 7 App Cas 518
An injunction was granted to prevent a company from carrying on calcining operations in any
manner whereby noxious vapours would be discharged, on the pursuer’s land, so as to do
damage to his plantations or estate.
Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428
An injunction was granted to prevent a person from turning a floor underneath a residential
flat into a restaurant and thereby causing a nuisance by heat and smell to the occupier of the
flat.
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.
Kuldip Singh v. Subhash Chander Jain, (2000) 4 SCC 50
The appellant-defendant constructed a bhatti (baking oven) in his premises. He also moved an
application to the Municipal Corporation of Ludhiana seeking grant of licence to run the
bakery. The plaintiff-respondents filed a suit seeking an injunction against the Municipal
Corporation restraining it from issuing the license sought for by the appellant. During the
pendency of the suit the license under Section 342 of the Punjab Municipal Corporation Act,
1976, was granted by the Municipal Corporation to the appellant.
The trial court dismissed the suit against the Municipal Corporation forming an opinion that
the Municipal Corporation could not be restrained by the civil court from exercising a
statutory power by issuing an injunction.
The plaintiffs preferred second appeal before the Supreme Court which made an observation
that the bhatti would emit smoke, heat and smell which were a nuisance to the residents of the
locality.
Palmar v. Loder, (1962) CLY 2233
In this case, perpetual injunction was granted to restrain defendant from interfering with
plaintiff’s enjoyment of her flat by shouting, banging, laughing, ringing doorbells or
otherwise behaving so as to cause a nuisance by noise to her.
Radhey Shiam v. Gur Prasad Sharma, AIR 1978 All 86
It was held by the Allahabad High Court 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.
Sturges v. Bridgman, (1879) 11 Ch D 852
A confectioner had for upwards of twenty years used, for the purpose of his business, a pestle
and mortar in his back premises, which abutted on the garden of a physician, and the noise
and vibration were not felt to be a nuisance or complained of until 1873, when the physician
erected a consulting room at the end of his garden, and then the noise and vibration, owing to
the increased proximity, became a nuisance to him.
The question for the consideration of the Court was whether the confectioner had obtained a
prescriptive right to make the noise in question.
It was held that he had not, inasmuch as the user was not physically capable of prevention by
the owner of the servient tenement, and was not actionable until the date when it became by
reason of the increased proximity a nuisance in law, and under these conditions, as the latter
had no power of prevention, there was no prescription by the consent or acquiescence of the
owner of the servient tenement.
Miller v. Jackson, (1977) 3 WLR 20
The Court of Appeal held that the playing of cricket on a particular ground had been for
many years a benefit to the whole community but that, since the construction of houses close
to the cricket ground, it had become a nuisance because the interference with the use and
enjoyment of the adjoining properties was substantial.
Goode v. Owen, (2001) EWCA Civ 2101:
The Court of Appeal held that golf balls falling from a driving range onto the claimant's
agricultural land constituted a nuisance.
British Celanese v. Hunt (Capacitators) Ltd. (1969) 2 All ER 749
Foil had blown from the defendant's land where it was stored and had damaged an electricity
substation, causing the electricity to a small industrial estate to be cut off. The same problem
had occurred once a few years previously and had arisen because of the way in which the
material was stored on the defendant's property. The Court held that it was an act of private
nuisance.
Video London Sound Studio Ltd. v. Asticus (GMS) Ltd. And Keltbray Demolition Ltd.
(2001) All ER (D) 168
Keltbray were demolition contractors who were demolishing buildings on Asticus site. The
work displaced some rubble in Video London's chimney which fell into their property and
damaged some expensive recording equipment. The appointed surveyors made an addendum
award requiring Asticus to reimburse the cost of this under the 1939 Act's “making good”
provisions. Asticus failed to pay. Video London therefore brought proceedings in nuisance,
negligence and for a breach of the award.
As Video London had suffered physical damage it was no defence that the works had been
undertaken with reasonable care and caution. The kind of damage which occurred was
reasonably foreseeable. This was sufficient, even if the precise mechanism by which it
occurred could not have been foreseen.
Remedy:
The remedy in an action for private nuisance is a civil action for damages or an injunction or
both and not an indictment.

Defences
Following are the valid defences to an action for nuisance:
 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 defence 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 legalised ab initio, as if it had been authorised
in its commencement by a grant from the owner of servient land. The time runs, not from the
day when the cause of the nuisance began but from the day when the nuisance began.
The easement can be acquired only against specific property, not against the entire world.
In Elliotson v. Feetham (1835) 2 Bing NC 134, it was held that a prescriptive right to the
exercise of a noisome trade on a particular spot may be established by showing twenty years’
user by the defendant.
In Goldsmid v. Turubridge Wells Improvement Commissioners (1865) LR 1 Eq 161, it was
held that no prescriptive right could be obtained to discharge sewage into a stream passing
through plaintiff’s land and feeding a lake therein perceptibly increasing quantity.
In Mohini Mohan v. Kashinath Roy, (1909) 13 CWN 1002, it was held that no right to hold
kirtan upon another’s land can be acquired as an easement. Such a right may be acquired by
custom.
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 neighbour, 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.
 Statutory Authority
Where a statute has authorised 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.
In a suit for nuisance it is no defence:
1. Plaintiff came to the nuisance: E.g. if a man knowingly purchases an estate in close
proximity to a smelting works his remedy, for a nuisance created by fumes issuing therefrom
is not affected. It is not valid defence to say that the plaintiff came to the nuisance.
2. In the case of continuing nuisance, it is no defence that all possible care and skill are being
used to prevent the operation complained of from amounting to a nuisance. In an action for
nuisance it is no answer to say that the defendant has done everything in his power to prevent
its existence.
3. It is no defence that the defendant’s operations would not alone mount to nuisance. E.g. the
other factories contribute to the smoke complained of.
4. It is no defence that the defendant is merely making a reasonable use of his own property.
No use of property is reasonable which causes substantial discomfort to other persons.
5. That the nuisance complained of although causes damages to the plaintiff as an individual,
confers a benefit on the public at large. A nuisance may be the inevitable result of some or
other operation that is of undoubted public benefit, but it is an actionable nuisance
nonetheless. No consideration of public utility should deprive an individual of his legal rights
without compensation.
6. That the place from which the nuisance proceeds is the only place suitable for carrying on
the operation complained of. If no place can be found where such a business will not cause a
nuisance, then it cannot be carried out at all, except with the consent or acquiescence of
adjoining proprietors or under statutory sanction.