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.
In 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.
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 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.
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 neighbouring 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:
# its degree or intensity;
# its duration;
# its locality;
# the mode of user of the property.
In 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.
In 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.
In 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.
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 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.

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.

In 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.
DEFENCES 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.

·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.

REMEDIES FOR NUISANCE

The remedies available for nuisance are as follows:

· Injunction- It maybe a temporary injunction which is granted on an interim basis and that
maybe reversed or confirmed. If it’s confirmed, it takes the form of a permanent injunction.
However the granting of an injunction is again the discretion of the Court

· Damages- The damages offered to the aggrieved party could be nominal damages i.e. damages
just to recognize that technically some harm has been caused to plaintiff or statutory damages i.e.
where the amount of damages is as decided by the statute and not dependent on the harm
suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is
not compensating the plaintiff, but to deter the wrongdoer from repeating the wrong committed
by him.
· Abatement- It means the summary remedy or removal of a nuisance by the party injured
without having recourse to legal proceedings. It is not a remedy which the law favors and is not
usually advisable. E.g. - The plaintiff himself cuts off the branch of tree of the defendant which
hangs over his premises and causes nuisance to him.

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.