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torts:nuisance

Public and Private Nuisance

Nuisance has been defined to be “anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to a trespass”. The word nuisance is derived from the French word nuire which means to do hurt or to annoy. Blackstone describes nuisance (nocumentum) as something that “ worketh hurt, inconvenience or damage.” It is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property or, in some cases, in the exercise of a common right.

Nuisances are of two kinds:

  1. Public and
  2. Private.

Public or common nuisance

Public or common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of all the King's subjects, or by neglecting to do anything which the common good requires. It is an act affecting the public at large, or some considerable portion of them; and it must interfere with rights which members of the community might otherwise enjoy. 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 nuisances. They are dealt with by, or in the name of, the State. Public nuisance can only be the subject of one indictment, otherwise a party might be ruined by a million suits. It depends in a great measure upon the number of houses and the concourse of people in the vicinity. An indictment will fail if the nuisance complained of only affects one or few individuals. Again no length of time can legalize a public nuisance, though it may supply defence to an action by a private person.1)

Drawing water for a canal from a filthy and polluted source2); carrying on trades which cause offensive smells3), or intolerable noises4); keeping gunpowder, naphtha, or similar inflammable substances in such large quantities as to be dangerous to life and property5) are instances of public nuisance. And so every act will be a nuisance which obstructs the public in the use of a highway or navigable river, either by actually blocking up or narrowing the available passage6), or by causing such a noxious smell as to be a substantial annoyance to those using the highway, although not to the neighbourhood in general7), or by placing anything on the land next to the highway, which can be a source of danger to persons properly using it8); and so also is running horse races on Sunday on a race-course adjoining a residential locality.9)

Public nuisance does not create a civil cause of action for any person (not being a suit under section 91 of the Code of Civil Procedure, 1908). In order that an individual may have a private right of action in respect of a public nuisance:

  1. he must show a particular injury to himself beyond that which is suffered by the rest of the public;
  2. such injury must be direct, and not a mere consequential injury; and
  3. it must be shown to be of a substantial character, not fleeting or evanescent.10)

Where the plaintiff resided in a house next to a Roman Catholic chapel of which the defendant was priest, and the chapel bell was rung at all hours day and night, as Soltau, speaking for himself and the neighbours generally, said plainly “ the practice we complain of is offensive alike to our ears and feelings; disturbs the quiet and comfort of our houses; molests us in our enjoyments, whether of business, amusement, or devotion; and is peculiarly injurious and distressing when members of our household happen to be invalids; it tends also to depreciate the value of our dwelling houses,” it was held that ringing was a public nuisance and the plaintiff was held entitled to an injunction.11)

Where the plaintiff declared that he was navigating his barges, laden with goods, along a public navigable creek, and that defendant wrongfully moored a barge across, and kept the same so moored, and thereby obstructed the public navigable creek, and prevented the plaintiff from navigating his barges so laden, per quod, plaintiff was obliged to convey his goods a great distance overland, and was put to trouble and expense in the carriage of his goods overland;12) where the plaintiff, by reason of the road being obstructed, was unable to cart his corn which adjoined the highway, and which was in consequence spoiled;13) where the plaintiff was driving his asses along a highway, and the defendant shut a gate and forced him, while thus actually using it, to take a more circuitous way;14) where the operations of a railway company obstructed the entrance to some mews, in which the plaintiff carried on his business of coach master;15) where horses and waggons were kept standing for an unreasonable time in the highway opposite a man's house, so that the access of customers was obstructed, the house was darkened, and the people in it were annoyed by bad smells;16) and where the obstruction of a highway prevented customers from coming to a colliery17) it was held in all these cases that an action lay as “ particular, direct and substantial ” damage was caused to plaintiffs.

The diversion of traffic or custom from a man's door by an obstruction of a highway, whereby his business is interrupted, and his profits diminished, seems to be too remote a damage to give him a right of private action18), unless indeed the obstruction is such as materially to impede the immediate access to the plaintiff's place of business more than any other men's, and amounts to something like blocking up his doorway.19)

Indian case: The plaintiffs became owners of Grant Buildings situated at Colaba in Bombay in 1868, and had ever since derived a considerable income from the rooms by letting them to Europeans at an average rent of Rs. 50 a month. The defendants were owners of an adjacent cotton mill known as the Nichol Mill, which was erected in 1873. Prior to 1873 the site of the mill was occupied by the buildings of the Hydraulic Press Company, which were erected in 1868. The premises were in 1873 purchased by the Nichol Press and Manufacturing Company who thereupon proceeded to build the Nichol Mill. In an action, the plaintiff obtained compensation against the defendants on account of certain rooms in the building which remained unlet owing to the noise and smoke of the mill, and an injunction was obtained prohibiting any increase of smoke, cotton-fluff or noise of machinery beyond what subsisted at the time of the decree.20)

Leading cases: Soltan v. DeHeld ; Rose v. Miles..

Suit under Section 91

Section 91 of the Code of Civil Procedure provides that in the case of a public nuisance or other wrongful act affecting or likely to affect, the public, a suit for 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 person by reason of such public nuisance or other wrongful act. S.91 does not limit or otherwise affect any right of suit which may exist independently of its provisions. That being so, any person who has suffered special damage. on account of public nuisance he can file a suit without taking resort to S.91, C.P.C. for the removal of the public nuisance from the public street. Whether the plaintiff has suffered special damage would depend on the facts and circumstances of each case.21)

Private nuisance

Private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. It cannot be made the subject of an indictment, but may be the ground of civil action for damages or an injunction or both. It includes all kinds of damage arising from water (other than certain classes of mine water), filth, fire, gases, or other noxious things being caused or permitted to pass from the defendant's land on to the plaintiff's, all damage arising from improper use of a natural stream, damage arising from the excavation of the defendant's land, and the consequent withdrawal of the support to which the plaintiff's land is entitled, obstructions of easements of all kinds, and injuries to rights of profit a prendre.

A right to commit a private nuisance may be acquired by prescription as an easement.22) But if the nuisance injuriously affects the public, no prescription will make it lawful.23)

A man may become responsible for a nuisance by erecting a building which overhangs the house or land of his neighbour, or by constructing a cornice, or fixing a spout, or any projection which causes, or has a tendency to cause, an unnatural quantity of rain water to descend on his neighbour's house and land;24) or by erecting and working a noisy smith's forge, or noisy workshops25), or a stinking tallow-furnace, smelting-house, dye-house, lime-kiln, tan-pit, privy, or hog-sty;26) or by making a cesspool, the filth of which percolates through the soil and contaminates the water of his neighbour's well or spring;27) or by burning lime or bricks, or erecting a glass-house or brew-house so near to a dwelling-house that the smoke and smell thereof enter the house and render it unfit for habitation;28) or by disturbing a decoy-pond by the firing of guns in the neighbourhood of the pond;29) or by playing a steam-organ.30)

While the plaintiff's carter was leading two horses drawing a cart along a highway up an incline, one of the horses slipped and fell against a spiked iron fence belonging to the defendants, and received injuries in consequence of which it died. The fence had been put up for about seven years; before it was put up there were a bank and hedge at the side of the road. The Court said the law no doubt was that if a person erected on his own land anything calculated to interfere with the use of a highway, what he so did was a nuisance. But that the erection of the wire fence, not with spikes jutting out into the road, but with perpendicular spikes, did not amount to a nuisance.31) A tramway company after a heavy snowstorm cleaned their track by means of a snow plough, and thereby increased the deposit of snow in certain portions of the street, and, in order to prevent the snow or snow-water from freezing in the grooves, they scattered salt upon the rails and in their vicinity. The snow and salt in combination formed a wet briny amalgam, and the slush thus formed was left to remain in the street without being removed then and there. The result was that the briny slush permeated a large portion of the street and caused a good deal of injury to horses standing or moving there. Held, that these acts of the tramway company amounted to an unauthorized nuisance, and that they were responsible for it, notwithstanding the fact that the duty of removing any obstructions in the street rested with the Town Council as the street authority.32)

It is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, any thing that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade or occupation or business is a material injury to property, then there unquestionably arises a very different consideration. In a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.33)

It appears that the degree of harm, in an action for personal discomfort must be greater than in an action for injury to property. As to the degree of discomfort which constitutes a nuisance, Knight-Bruce, V. C, said in Walter v. Selfe: “ Both on principle and authority the important point for decision may be thus put : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not according to the elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?” In considering this question regard must be had to the character of the locality, and the class of persons of whom the public is composed. Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances. What would be a nuisance in Belgravia would not necessarily be a nuisance in Bermondsey.34)

Injury to property

Any nuisance whereby sensible injury is caused to the property of another is actionable.

Trade

A man may, without being liable to an action, exercise a lawful trade, as that of a butcher, brewer, or the like, notwithstanding it is carried on so near the house of another as to be an annoyance to him, in rendering his residence less delectable or agreeable; provided the trade is so conducted that it does not cause what amounts in point of law to a nuisance to the neighbouring house. But if a, nuisance is created, it is no answer to an action for damages to show that the place where the trade is carried on is a fit and convenient place for such a trade, and that in the exercise of the trade there is only a reasonable use by the defendant of his own land. The spot may be very convenient for the defendant or for the public at large, but very inconvenient to a particular individual, who chances t& occupy the adjoining land; and proof of the benefit to the public from the exercise of a particular trade in a particular locality can be no ground for depriving any individual of his right to compensation in respect of the particular injury he has sustained from it.35) Again, a man cannot by first starting a noxious trade on a barren spot, compel the owners of adjoining land to leave it waste, where but for the nuisance they could build upon it or otherwise use it; and though in a crowded city less quiet and cleanliness must be expected than in the country, no one can require others to submit to more than the natural and incidental annoyances of the locality; and the place for a noxious trade must be convenient and proper, not in regard to the trader who uses it, but to those who are affected by its being so used.36) The word ' convenient ' means ,a place where a nuisance will not be caused to another. A tan-house is necessary, for all men wear shoes; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house ; and they ought to be erected in places convenient for them.37)

It was not every degree of annoyance, however small, that would be actionable. The doctrine being that the law does not regard trifling inconveniences; that everything must be looked at from reasonable point of view, the injury from noxious vapour must such as to visibly diminish the value of the property and the comfort and enjoyment of it; that in determining that question, the time, locality and all the circumstances should be taken into consideration; and that in districts where great works have been erected and carried on, which are the means of developing the national wealth, persons must not stand on extreme rights and bring actions in respect of every matter of annoyance, for that would be destructive to business in these places.38) The damage must be sensible, so that every fairly instructed person can really and clearly perceive it, not merely such as can only be made sensible by the microscope or by chemical tests.39)

A bought an estate in a neighbourhood where many manufacturing works were carried on. Among others, there were works of a copper-smelting company. It was not proved whether these worlds were in actual operation when the estate was bought. The vapours from these works, when they were in operation, were proved to be injurious to the trees on A's estate. Held that A was entitled to damages.40)

Sewers, drains, etc

Every occupier of land is entitled to the reasonable enjoyment thereof as a natural right of property, and may maintain an action against any one who allows any filth or other noxious thing produced by him on his own land to interfere with this enjoyment, or who, by artificial means, causes things in themselves inoffensive to pass into his neighbour's property to the prejudice of his enjoyment thereof.41) Thus, every occupier is bound to prevent the filth from his drains or cesspools from filtering through the ground into his neighbour's house or land. If by reason of an originally faulty construction of the sewer, the filth therefrom percolates through the soil and floods the cellars of the adjoining occupiers the landowner will be responsible for the nuisance, although such occupiers are his own tenants.42)

When the plaintiff and defendant were occupiers of adjoining houses and an old drain commenced on the defendant's premises and then passed under other houses, receiving their drainage, and back again under the defendant's house and then under the plaintiff's, and did damage by leakage into his cellar, it was held that the defendant was liable for the damage done, although he he was unaware of the existence of the drain and was guilty of no negligence; for it was his duty to keep his drainage from passing to the plaintiff's premises otherwise than along its accustomed channel.43)

Physical discomfort

There are two ingredients essential to constitute a cause of action in respect of nuisances of this class.

  1. The act complained of must bean act which, having special regard to the circumstances and surroundings of the defendant's property, is in excess of the natural and ordinary course of enjoyment of that property. There are many acts, which are involved in the comfort of a man's dwelling, which must, in fact, in a greater or less degree, constitute a nuisance to a neighbour, who jet has no legal redress, and the true principle is that each person is entitled to the reasonable user of his dwelling house, and is justified in doing any acts necessarily incidental to such user, though in deciding what constitutes a reasonable user all the surrounding circumstances must be considered as the only standard of what constitutes such a user; and, the acts of user must be done conveniently and not oppressively.44) The defendant kept an hotel adjoining the plaintiff's residence, and put a kitchen stove in a place where no stove had previously been, and so near the wine-cellar of the plaintiff as to damage the wine. It was admitted that the stove was one of an ordinary character, well constructed, and that precaution had been taken to prevent its being obnoxious, but an injunction was granted.45) This decision may be supported on the assumption of a finding that the placing for the first time of a large stone against a neighbour's cellar, when it might be placed elsewhere, is not a reasonable user conveniently exercised.
  2. The act must materially interfere with the ordinary comfort of human existence. This second ingredient finds expression in the maxim lex non favit votis delicatorum. It is not necessary that the acts or state of things complained of should be noxious in the sense of being injurious to health. The interference with a man's comfort which will justify the intervention of the Courts must be a material interference with an ordinary and reasonable standard of comfort, and must be considered in the light of the circumstances of time and place.

Nuisances of this class for the most part arise in respect of:

  1. Obstruction of light.
  2. Pollution of air or water.
  3. Noise.

Obstruction of light

With regard to this, see Wrongs to Easements of air and light.

Pollution of air or water

Air: If by the use of coals or impure ashes and animal substances, smoke, vapour, and noisome gases are communicated to the air which surrounds and enters the plaintiff's house, so as to cause inconvenience to the occupiers thereof, and renders the house manifestly less comfortable, the act will be a nuisance, though the pollution of the air may not be carried to the extent of rendering it noxious to animal or vegetable health. Untainted and unpolluted air means not necessarily air as fresh, free and pure as at the time of building the plaintiff's house the atmosphere there was, but air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence.46)

In India voluntarily vitiating the atmosphere so as to make it noxious to the public health is indictable as an offence (see I.P.C. s. 278).

An action was held to lie for a nuisance caused by the carrying on of the business of a tallow-chandler in a house adjoining the plaintiff's.47) An injunction was granted to prevent a gas company from manufacturing gas in such 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.48) An injunction was granted to prevent a man burning bricks on his own land in such a proximity to that of the plaintiff, his neighbour, as to be offensive to him.49) An injunction was granted, to restrain the defendant from making bricks on a large scale on land within a short distance from the plaintiff's house.50) An interdict 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.51) The defendant was the occupier of premises underneath a residential flat, and he turned the premises into a restaurant and thereby caused a nuisance by heat and smell to the occupier of the flat above. Held, that the alterations made by the defendant were not reasonable as regards his user of the premises, and lie was liable for the nuisance.52)

Water: As regards nuisance from pollution of water, see Infringements of Rights of Water.

Pollution of a public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, is a public nuisance, and is punishable as an offence (see I.P.C. s. 277).

Noise

Quietness and freedom from noise are indispensable to the full and free enjoyment of a dwelling house. A nuisance by noise, supposing malice to be out of question, is emphatically a question of degree. If my neighbour builds a house against a party-wall next to my own, and I hear through the wall, more than is agreeable to me, the sounds from his nursery or music room, it does, not follow, even if I am nervously sensitive or in infirm health, that I can bring an action or obtain an injunction. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable.53)

In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff and the right of the defendant. If the houses adjoining each other are so built that from the commencement o£ their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the houses are so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour showing substantial injury, is entitled to protection.54)

If the trade is proved to be a noisome trade the defendant may, nevertheless, establish a prescriptive right to the exercise of the trade on the particular spot, by showing that he has exercised it without molestation or interruption for the period of twenty years. The right to carry on a noisome trade in derogation of the rights of another may also be gained by statute, custom, or grant; but the right to carry on a trade which creates a public nuisance can only be acquired by clear statutory authority.55) But time will not always supply such a defence, where the nuisance is one that has been gradually increasing.56)

Noise: The constant daily ringing of a peal of heavy bells in a house actually adjoining a private residence was held to be an actionable nuisance and an injunction was granted to restrain it.57) Similarly, building operations were prevented from being proceeded with during the night to the annoyance and discomfort of an adjoining occupier.58) Sending up of fire-works and causing a band to play for several hours twice a week within one hundred yards of a dwelling house, was held to be an actionable nuisance.59) A circus, erected near the plaintiff's house, the performances of which lasted three hours every evening, making a loud noise heard through the plaintiff's house, was held to be a nuisance respect of which the plaintiff was entitled to an injunction.60) Similarly, an injunction was granted where a club was established for pugilistic encounters, which caused the collection of large and noisy crowds outside the club, which was kept open till 3 O'clock A.M.61) Injunctions were granted in respect of a nuisance consisting of a rifle-gallery, organ, and round-about in proximity to the plaintiff's house62), and in respect of noise connected with the carrying on of dairy business.63) A stable placed in such a close proximity to a house as ta interfere by reason of the noise of the horses with the enjoyment of the owner of the house, will be restrained by an injunction as a nuisance at the suit of the latter.64)

Music: Where a nuisance was caused to a tenant of a room in a house by reason of the floor above being used for dancing and other entertainments causing noise and vibration, the Court gave nominal damages but declined to grant an injunction on the ground of the balance of convenience.65) Giving of numerous music lessons by the defendant in a house separated from the plaintiff's house by a thin party wall, varied by practising and singing, and evening musical entertainments, was held net to be a nuisance for which an injunction would be granted; and moreover, the Court restrained the plaintiff from making noises by way of reprisal.66) The plaintiffs were auctioneers and public- house brokers and valuers, and the defendants were musical instrument makers and dealers and music sellers, at the adjoining house. The plaintiffs sued for an injunction to restrain the defendants from playing on pianos and other instruments, singing and shouting, or making other loud noises, in such a manner as to cause annoyance or injury to the plaintiffs in their business of auctioneer's and valuers carried on by them, or otherwise using the defendant's said premises as an annoyance and injury to the plaintiffs. It appeared that the defendants were in the habit of letting their upper rooms for lessons in pianoforte playing and singing; but the plaintiff's complaint was directed mainly to the singing lessons. The Court limited the injunction to the singing only and restrained the defendants from allowing singing lessons to be given or singing practice to go on in the said premises to the annoyance of or injury to the plaintiffs in their business.67)

Prescription: A confectioner had for upwards of twenty years used, for the purposes 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. The Court of Appeal, affirming; the judgment of Jessel, M. R., held that he had not, inasmuch as (1) the user was not physically capable of prevention by the owner of the servient tenement, and (2) 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, which lies at the root of prescription.68)

Who may sue for a nuisance

If the injured property is in the occupation of tenants, the landlord or reversioner has no right of action, unless the nuisance is of a permanent character, and necessarily inflicts a lasting damage to the inheritance69), e.g., permanent depreciation of the property, or by setting up an adverse claim of right and not of a temporary, character, such as noise and smoke.70) A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as co-plaintiff with the actual occupier.71) However great a nuisance may be suffered by the occupiers of a house, it would seem that unless they go away and leave the house vacant, there is no injury to the reversion for which the landlord can sue. So long as the tenants stop and endure the nuisance they are the only persons who can complain.72)

The plaintiff was owner in fee of a cottage. The defendant, who owned land immediately adjoining, erected poles and a boarding thereon, in order to block out the access of light to the plaintiff's cottage. This boarding created an intolerable creaking noise, and was a nuisance to the occupiers of the cottage; but it was held that the landlord of the cottage was not entitled; to an injunction against the maintenance of the boarding.73)

Who is liable for a nuisance

Every person who does, or directs the doing of, an act which cannot be done at all without constituting a nuisance, is personally responsible, whether he was acting for himself, or for, or on behalf of, or for the benefit of another; and whether he is a principal and employer, or a mere servant carrying into effect the orders of his master.74) He who actually creates a nuisance, whether on his own land or not, is liable for it.75)

In dealing with the question of the parties who are liable for a nuisance existing upon private property a distinction is to be drawn in the first place between those cases in which the damage is caused by the physical condition of the premises themselves and those in which the damage is caused by the particular mode of their user; and, secondly, with regard to the former class of cases a further distinction is to be drawn between those cases in which the physical condition complained of is the result of a wrongful act of commission and those in which it is due to a wrong of omission.

Nuisance by act of commission

Nuisance caused by physical condition of premises resulting from act of commission.

Where a nuisance complained of is caused by the physical condition of the premises and that condition is the result of an act of commission, as for instance, where a building is erected so as to obstruct the plaintiff's ancient lights76), or market77); the party who originally created the nuisance remains liable for all the damage flowing from its continuance even though by reason of his not being in possession of the premises he is unable to prevent that continuance. If a wrongdoer conveys his wrong over to another whereby he puts it out of power to redress it, he ought to answer for it.78)

Nuisance from wrong of omission

Nuisance caused by physical condition of premises resulting from wrong of omission.

Where the physical condition of the premises complained of is the result of a wrong of omission, as where the owner of a house suffers it while in his possession to get into a ruinous state so that portions of it are likely to fall upon the adjoining land and do damage79), or where the owner of a coal plate80) or grating81) in the footway of a public street permits it while in his possession to be in such an insecure condition as to be dangerous to persons using the street, such owner cannot get rid himself of the liability for the possible consequences of his breach of duty by merely letting the premises to tenants without taking a covenant from the tenant to repair them. If he lets them without such a covenant, both landlord and tenant are liable for any damage arising from the condition of disrepair existing at the date of the lease.

Nuisance from mode of user of premises

Nuisance caused by mode of user of premises.

Where the nuisance arises, not from the physical condition of the premises themselves, but from the mode of their user, then if the premises are, at the time of the nuisance arising, in the occupation of a tenant, the better opinion seems to be that the tenant is liable and the landlord is not, even though the latter may have contemplated the premises being used in the very way which brings about the state of things complained of.

Liability of landlords

As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant, and not the landlord, is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition, and the only exceptions to this rule appear to arise when the landlord has either:

  1. Contracted with the tenant to repair; or
  2. When he has let the premises in a ruinous condition;82) or
  3. When he has expressly licensed the tenant to do acts amounting to a nuisance.83)

These rules, however, only apply to the property actually let; and where the landlord retains control of the approaches (e.g., a stair-case common to a lot of flats) he, and not the tenant, is responsible both to tenants and strangers for injuries caused by want of repair.84)

When both landlord and tenant are responsible for the injury, the plaintiff may proceed against either at his election. But he can have only one satisfaction for the same wrong; and having sued and recovered judgment against one, he cannot recover against the other.85)

If a landlord erects privies in such a situation that the use of them must necessarily create a nuisance and the privies are demised to tenants who use them and create a nuisance, the landlord will be responsible for the erection and continuance of the nuisance.86) So also, where the thing demised consisted of a dam or mound of earth, stopping up the channel of a river or water course, or keeping a, mill-pond at an undue elevation.87) Where the land owner erected a coffee-shop with a low chimney under the plaintiff's windows, and let the coffee-shop to a tenant who lighted a fire in the chimney and created a great smoke, which penetrated the plaintiff's dwelling house and caused a nuisance, it was held that the landlord was not responsible for this nuisance, as the tenant could have burned coal or charcoal in the chimney and have used the chimney without necessarily creating a great smoke, or might have abstained from making fires at all when the wind was in such a direction as to carry the smoke to the plaintiff's house.88)

Unsafe premises: Where the declaration contained an allegation that the defendant let the house when the chimneys were known by him to be ruinous and in danger of falling, that he kept and maintained in that state, and that the tenant was under an obligation to repair, it was held that the landlord was liable.89) Where in consequence of disrepair, a chimney fell and injured the tenant's family, it was held that he had no remedy, unless the landlord had contracted to keep the house in repair, or unless there had been fraud on his part in industriously concealing the defect from the tenant.90) The defendant let premises to a tenant who covenanted to keep them in repair. Attached to the house was a coal-cellar under the footway, with an aperture covered by an iron plate, which was, at the time of the demise, out of repair and dangerous, and a passer-by, in consequence, fell into the aperture, and was injured; it was held that the obligation to repair, being, by the lease, cast upon the tenant, the landlord was not liable for this accident.91) A landlord who lets an unfinished house in a dangerous condition, he being under no liability to keep it in repair, is not liable to his tenant, or to a person rising the premises for personal injuries caused through a defective staircase.92)

Leading case: Todd v. Flight.

Liability of purchaser

If a nuisance is created on premises, and a man purchases the premises with the nuisance upon them, though there is a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion of the existing nuisance, he makes himself liable for the continuance of the nuisance. But if, after the reversion is purchased, the nuisance is erected by the occupier, the reversioner incurs no liability; yet, in such a case, if there were only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, and he knew of it, that would make the landlord liable; he is not to let the land with the nuisance upon it.93)

The purchaser of land with an existing nuisance upon it cannot be sued for continuing the nuisance until after a request made to abate it.

Ineffectual Defences

  1. Nuisance due to acts of others.
  2. Public Good.
  3. Reasonable care.
  4. Plaintiff coming to nuisance .

Nuisance due to acts of others

Sometimes, the act of two or more persons, acting independently of each other, may cause nuisance although the act of anyone of them alone would not be so. An action can be brought against anyone of them and it is no defence that the act of the defendant alone would not be a nuisance, and the nuisance was caused when other had also acted in the same way.

Public Good

It is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general, otherwise no public utility undertaking could be held liable for the unlawful interference with the rights of individuals. In Shelfer v. City of London Electric Lighting Co. and Thorpe vs. Brumfit, during the building of an electric power house by the defendants, there were violent vibrations resulting in damage to the plaintiff’s house. In an action for injunction by the plaintiff, the defence pleaded was that if the building was not constructed the whole of the city of London would suffer by losing the benefit of the light to be supplied through the proposed power house. The plea was rejected and the court issued an injunction against the defendants.

Reasonable care

Use of a reasonable care to prevent nuisance is generally no defence. In Rapier v. London Tramways Co, considerable stench amounting to nuisance was caused by the defendants stables constructed to accommodate 200 horses to draw their trams. The defence that maximum possible care was taken to prevent the nuisance failed and the defendants were held liable.

Plaintiff coming to nuisance

It is no defence that the plaintiff himself came to place of nuisance. A person cannot be expected to refrain from buying a land on which a nuisance already exists and the plaintiff can recover even if nuisance has been going on long before he went to that place. The maxim volenti non fit injuria cannot be applied in such a case. Held in Elliotson v. Feetham; Bliss v. Hal; Sturges v. Bridgman.

Remedies

The remedies for nuisances are:

  1. Abatement;
  2. Damages; and
  3. Injunction.

Section 133 of Criminal Procedure Code is also used to remove nuisances.

Abatement

Abatement, i.e., removal of the nuisance by the party injured. The removal must be:

  1. peaceable;
  2. without danger to life or limb; and
  3. if it is necessary to enter another's land to abate the nuisance, or where the nuisance is a dwelling-house in actual occupation on a common, after notice to remove the same, unless it is unsafe to wait.

No more damage may be done than is necessary. It is lawful to remove a gate or barrier which obstructs a right of way, but not to break or deface it beyond what is necessary for the purpose of removing it. Where a structure, for instance a dam or weir across a stream, is in part lawful and in part unlawful, a party abating that which is unlawful cannot justify interference with the rest. He must distinguish them at his peril.94)

A private individual, however, cannot abate a public nuisance; he may have an action for damages, if he suffers a special and distinct damage from such public nuisance.

It is decided that not only walls, fences, and such like encroachments which obstruct rights of common may be removed, but a house wrongfully built on a common may be pulled down by a commoner if it is not removed after notice within a reasonable time.95) If a tree overhangs the land of another person then that person can lawfully cut the overhanging branches even without giving notice, however long they have overhung his land.96)

Indian cases: Plaintiff sued for an injunction restraining the defendant from allowing the branches of a tree belonging to him to overhang plaintiff's land, and for an order directing him to cut off some branches. Defendant pleaded that the branches of his tree had projected over plaintiff's land for forty years, and he contended that he had, therefore, acquired a prescriptive right of the nature of an easement over plaintiff's land. Held, that the plaintiff was entitled to cut away the branches which overhang his land, though they had done so for more than forty years.97)

Certain plaintiffs sued for an injunction restraining defendants from obstructing them in cutting certain branches of a pipal tree overhanging their property. The pipal tree grew in the enclosure of a temple, and the resistance was based on the ground that the tree was an object of veneration to Hindus, and that the lopping of its branches would tie offensive to the religious feelings of the Hindu community. Held, that plaintiffs were entitled to the injunction prayed for and that the fact that the plaintiffs' action might cause annoyance to a large number of Hindus was not a, sufficient ground for cutting down the well recognized common law rights of an owner of property.98)

Notice: Nuisances by an act of commission are committed in defiance of those whom such nuisances injure and the injured party may abate them without notice to the person who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang the public road or the private property of the person who cuts them. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances persons should not take the law into their own hands, but follow the advice of Lord Hale and appeal to a Court of Justice.99) In abating nuisances of rights of common or obstructions of a right of way notice is not strictly necessary, unless the encroachment is a dwelling house in actual occupation.

A distinction has been taken between nuisances of commission and nuisances of omission, and it is said that, if the plaintiff was the original wrong-doer, and himself erected the nuisance, it may be abated without notice; but, if the nuisance was created by another, and the plaintiff succeeded to his possession of the locus in quo afterwards then notice to remove must be given in order to make out a justification.100)

Damages

The measure of damages is the diminution in the saleable value of the property in consequence of the nuisance.101) The plaintiffs must prove some special damage.

In cases of continuing nuisance, the Court cannot lawfully give damages in respect of any injury subsequent to the day of the commencement of the action, for every day that the nuisance continues there is a fresh cause of action, in respect of which further damages are recoverable. But if substantial damages are once given and a fresh action is brought for the continuance of the nuisance, exemplary damages may be given to compel an abatement.102) In the case of continuing actionable nuisance the jurisdiction of the Court to award damages, instead of injunction, ought only to be exercised under very exceptional circumstances. Damages may be given, instead of an injunction, when the following requirements are all found in conjunction, viz., where the injury to the plaintiff's rights is:

  1. small;
  2. capable of being estimated in money;
  3. capable of being adequately compensated by small sum; and
  4. when an injunction would be oppressive.103)

It is no answer to an action for nuisance that the plaintiff knew that there was a nuisance and yet went and lived near it.104)

Injunction

In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages.105) The injury must be either irreparable or continuous. It is not a necessary condition of obtaining an injunction to show material specific damage. Continuous interference with a legal right in a manner capable of producing material damage is enough.106) Any one seeking an injunction to restrain an alleged future nuisance, public or private, must show a strong case of probability that the apprehended mischief will in fact arise.107) Occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of a Court by injunction except in extreme cases.108)

A perpetual injunction was granted to restrain the defendant from allowing noxious and offensive refuse water to flow from his manufactories into an old pit on his land, but which percolated underground into the defendant's collieries.109) An injunction was granted to restrain the defendant from using his cesspool in such a manner as by percolation of water through the soil to pollute defendant's well.110)

Indian case: The finding that a certain construction would be a nuisance to the occupants of an adjacent house whenever such house might be occupied is a sufficient basis for the granting of an injunction; it is not necessary that at the time of suit the house, in respect of which the injunction is claimed, should in fact be occupied.111)

Specific Relief Act, 1963: S.41(h), S.41(f) of the 1963 Act clearly mandates that an injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. The scheme of S.41 of the 1963 Act predicates that the civil Court must refuse to grant injunction in the situations referred to therein vide clauses (a) to (j).112)

Section 133 of the Criminal Procedure Code, 1973

S.133 is included in Chapter X of the Cr.P.C which deals about maintenance of public order and tranquillity. S.129 to 132 are included with a heading “unlawful assemblies”. S.133 to 143 are included with the heading “public nuisance”. S.133 clause (a) says that, any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public. S.133 clause (b) says that, whenever a District Magistrate or other authorities specially empowered in this behalf by the State Government, on receiving a report of a police officer or other information and on taking such evidence, (if any) as he thinks fit, considers that the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to health or physical comfort for the community and that in consequence, such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order, direct to remove such obstruction or to desist from carrying on the same or to prevent or stop the construction of such building etc.

No action can be taken under S.133 where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. S.133 of Cr. P.C. is attracted only in cases of emergency and imminent danger of the health or physical comfort of the community.113)

Head Notes.

Traffic problem because of uncontrolled parking in front of a restaurant. District Magistrate passing a conditional order closing down the restaurant. Whether proper ? Held, under the guise of removing obstruction or nuisance in a public road, District Magistrate cannot invoke S.133(1)(a) to shut down a business.114)

Petitioner, owner of dairy asked to shift dairy farm unit to some isolated area away from residential area as cow dung and urine of unit caused foul smell in area. Show cause notice issued to owner under S.133 prior to passing of absolute order. Plea of petitioner that he was not heard, is devoid of merit as order impugned clearly shows that show cause notice was issued prior to passing of order impugned, wherein petitioner has stated that he has not opened diary; a detail inquiry was conducted by Tehsildar. Act of the petitioner amounted to public nuisance, which was injurious to health and physical comfort of the community. Order of removal of nuisance, justified.115)

1)
Weld v. Hornby; see s. 268 of the Indian Penal Code as to nuisance punishable as a crime
2)
Attorney General v. Bradford Canal
3)
Malton Board of Health v. Malton Manure Co.
4)
Lambton v. Mellish
5)
R. v. Lister. D. & B.
6)
R. v. Lord Grosvenor
7)
R. v. Pappenean
8)
Penna v. Clare
9)
Dewar v. City and Suburban Racecourse Co.
10) , 16)
Benjamin v. Storr
11) , 57)
Soltau v. DeHeld
12)
Rose v. Miles
13)
Maynell v. Saltmarsh
14)
Greasley v. Codling
15)
Spenser v. London
17)
Iveson v. Moore
18)
Reckett v. Metro. Ry.
19)
Fritz v. Hobson
20)
The Land Mortgage Bank of India v. Ahmedbhoy
21)
AIR 1980 All. 376
22)
Murgatroyd v. Robinson
23)
DeWill v. Saunders
24)
Reynolds v. Clark
25)
Bradley v. Gill, Lutw
26) , 37)
Jones v. Powell
27)
Norton v. Scholefield
28) , 46)
Walter v. Selfe
29)
Keble v. Hickeringill
30)
Spruzen v. Lossett
31)
Gibson v. Plumstead Burial Board
32)
Ogston v. Aberdeen District Tramways Co.
33)
St. Helen's Smelting Co v. Tipping
34) , 36) , 68)
Sturges v. Bridgman
35) , 44)
Bamford v. Turnley
38) , 40)
St. Helen's Smelting Co. v. Tipping
39)
Salmon v. North & Cs Coal. Co.
41)
Hurdman v. N. E. Ry.
42)
Tenant v. Golding
43)
Humphries v. Cousins
45)
Reinhart v. Mentasi
47)
Bliss v. Hall
48)
Broadbent v. Imperial Goa Co.
49)
Waiter v. Selfe
50)
Beardmore v. Treadwell
51)
Sholts v. Inglis
52)
Sandar's Clark v. Grosvenor Mansons Co.
53)
Gaunt v. Finney
54) , 64)
Ball v. Ray
55)
Elliotson v. Feetham
56)
Goldsmid v. Tunbridge
58)
Webb v. Barker
59)
Walker v. Brewster
60)
Inchbard v. Robinson
61)
Bellamy v. Wells
62)
Winter v. Baker
63)
Tinker v. Aylesbury Dairy Co.
65)
Jenkins v. Jackson
66)
Christie v. Davey
67)
Motion v. Mills
69)
Mumford v. Oxford Ry.
70)
Mott v. Shoolbred
71)
Jones v. Chappel
72) , 73)
Cooper v. Crabtree
74)
Wilson v. Peio
75)
Thomson v. Gibson
76) , 78) , 85)
Rosewell v. Prior
77)
Thompson v. Gibson
79)
Todd v. Flight
80)
Pretty v. Brickmore
81)
Gwinnel v. Earner
82)
Nelson v. Liverpool Brewery Co.
83)
White v. Jamieson
84)
Miller v. Hannock
86) , 93)
R. v. Pedley
87)
Leslie v. Pounds
88)
Rich v. Basterfield
89)
Tdd v. Flight
90)
Gott v. Gandy
91)
Gwinnell v. Earner
92)
Lane v. Cox
94)
Greenslade v. Halliday
95)
Perry v. Fitzhowe
96)
Norris v. Baker
97)
Hari v. Shankar
98)
Behari Lal v. Ghisa Lal
99)
Earl of Lonsdale v. Nelson
100)
Jones v. Williams
101)
Tucker v. Newman
102)
Battishill v. Reed
103)
Shelfer v. City of London Elec. Light. Co.
104)
Hall v. Barlow
105)
Cooke v. Forbes
106)
Clowes v. Staffordshire Potteries Co.
107)
Attorney Gen. v. Manchester Corporation
108)
Swaine v. G.N. Ry.
109)
Turner v. Mirfield
110)
Womersly v. Church
111)
Prag Das v. Ori
112)
2020 KHC 6378
113)
2020 CriLJ 2642
114)
Sajina J. S. v. District Magistrate, Tvm. and Another, 2020 (2) KHC 186
115)
2019 CriLJ 1486


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