• Lex Specialis

Nuisance: Defences and Remedies

Niyati Nagar


Nuisance according to the Oxford Dictionary is a thing, person, or situation causing annoyance, trouble, or problems. Nuisance in law is a common-law tort. Court of Appeal of the District of Columbia in 1925, noted, nuisance is that class of wrongs which arise from the unreasonable, unlawful, or unwarranted use of one’s property either real or personal or from the person’s own indecent, improper or unlawful conduct which causes an injury to the other person’s or public’s right and result into discomfort, annoyance, inconvenience, or hurt. These resulting factors if in law satisfy to be termed as damage, the person is considered to be a wrongdoer or a tortfeasor. District of Columbia v. Totten, 55 App.D.C. 312. Further, clarifying what all can be considered as a nuisance Brown J. in 1890 observed that

“Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or which unlawfully obstructs the free passage or use, in a customary manner, of any navigable lake or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” Bohan v. Port Jervis Gaslight Co., 122 N.Y. 18

In the law of torts, nuisance is commonly classified as public, private, and mixed. A public nuisance is that which affects an indefinite number of people. It can be an infliction on say, all the residents of a certain locality, or persons under the extent of the wrongdoer’s range. The extent of the damage need not be equal on all those injured. Lansing v. Smith, 4 Wend., N.Y., 30. Private nuisance, on the other hand, is a wrongful act committed against an individual or a few people and or their property. A mixed nuisance is both public and private in its effect, public as it injures may people and private as it also inflict special injuries to private rights.


Defenses Available to the tortfeasor


Torts Law is a law of obligation and considering a particular tort of nuisance, the defenses available with the wrongdoers are discussed below.

The rule against the wrong of nuisance is sic utere tuo, ut alienum non-laedas. And encompasses any injury or harm to property or a person. According to scholars, nuisance is a condition and not an act, which depends upon the operation of wrong, the place of its operation, etc. thereby prescribing the scope of defense against the liability. The defense of prescription or easement for the nuisance against property and that of statutory authority against wrong to person and property are two common defense available. Apart from this contributory negligence is also a debatable defense in cases of nuisance.

  1. Prescription: Prescription cannot be extended to interpret as a grant for continuous nuisance. As a defense, it is considered that a prescriptive right can be invoked by the wrongdoer provided they have been using the property in question peaceably and for more than twenty-years without interruption. However, this protection of prescription is available only against the private nuisance. Bherulal v. Mohan Singh.

In order to establish a prescription, the defendant has to submit, occupation on the said property, identification of the enjoyment, and proof of the enjoyment being adversarial to the other persons right. These heads fulfill the elemental requirement of the easement right under section 15 of the Indian Easements Act, 1882. The easements characterizing nuisance may be pollution or tainting of air or water, noise or vibration, etc.

An easement right for continued nuisance against a private person or property can only be claimed when the right of interference is acquired by a grant of prescription. For example, the right of obstruction of light will be said to be acquired by prescription when the plaintiff did not question the interruption for at least 20 years after being acknowledged with the said obstruction. Sofie Bi v. Vasudev Chetty. Section 15 of the Indian Easements Act and section 26 of the Limitations Act, 1963 in India, thus provides for defense against otherwise actionable interference termed as a nuisance. While determining whether an action has become a nuisance or not court must look into “when does the act has become a nuisance in law”. Sturges v. Bridgman, (1879) 11 Ch D 85.

  1. Statutory Authority: An action otherwise nuisance can be declared as valid if it is backed by statute. A statute if provides for certain action than irrespective of whether it is leading to circumstances of injury it would be devoid of any liability provided the nuisance is not an intentional result but all the necessary steps to prevent such nuisance were taken. Marcie v. Thames Water Utilities Ltd.

The degree of nuisance allowed differs with the degree of authority bestowed. When absolute authority is granted, the action is affirmed by the statute even when it necessarily cause an injury. Whereas, with conditional authority comes the principle of due care and due protection of private rights.

  1. Contributory negligence: The courts around the globe are of divided opinion with respect to the inclusion of contributory negligence as a defense against nuisance. The common law is of the view that the liability for nuisance is not based on the type of act but on the annoyance caused by the defendant. An act can be intentional, unintentional, deliberate, non-deliberate, but the annoyance is the factor that furnishes ground for liability and not the manner by which such an annoyance is caused. Common law, therefore, does not imbibe negligence into the tort of nuisance. However, this traditional conception of tort liability was taken away by Justice Cordozo’s opinion in McFarlene v. City of Niagra Falls where he encompassed contributory negligence on the plaintiff in case of nuisance. With this opinion, J. Cardozo brought nuisance as a generic term describing a type of damage encompassing the whole field tort liability rather than a distinct wrong.

The position in law now has therefore changed, and the law now looks at how is the injury accomplished rather than just looking for the harm done. Nuisances, therefore, have been classified today according to the nature of the conduct of which it is a result thereby bringing in the principle of strict and absolute liability in the tort of nuisance. Hence, when the nuisance is originating from negligence caused by the defendant, the law of negligence applies, making contributory negligence defense for nuisance.

Furthermore, the situations where the actions are lawful initially but turn into nuisance by negligence in maintenance, the negligence has to be proved by the plaintiff applying the laws of negligence, including contributory negligence. It is to be further noted that the defense of contributory negligence does not apply in cases of “absolute nuisance” i.e., arising out of ultrahazardous or intentional conduct. Hoffman v. Bristol.


Remedies Available

  1. For private nuisance: There are three general remedies available against private nuisance namely, abatement, damages, and injunction.

(I) Abatement is a private action without involving the law agencies. It is the removal of nuisance by the party injured provided such removal is a) peaceful, b)without damage to life and limb, c) after due notice being sent, where the subject of nuisance is a dwelling property or removal requires interference with another person’s property, etc. However such notice can be bypassed if waiting for the notice proceedings is not safe. The Earl of Lonsdale v. Nelson, (1823) 2 B & C 302

The removal action must be proportional and to the extent necessary. For example, if to make a right of way the need is to break open a door, the door should only be wrecked and not uprooted. This particular remedy is not favored by the law and therefore, is made available only in simple cases of wrongdoing those which would not justify the expense of legal proceedings. For example, an individual can abate the nuisance caused by their neighbor’s hanging olive branches into those individuals’ lawn. In India, Local bodies like Municipality have the power to abate the nuisance and on the unreasonable refusal by these bodies, the plaintiff can move to the High Court under Article 226 of the Constitution of India. Anil Krishna Pal v. State of West Bengal, AIR 1989 Cal 102.

(II) Damages in cases of nuisance arise daily whenever the use of the defendant’s or plaintiff’s property by the defendant results in the injury to the plaintiff. The damages are measured on the basis of the diminution in the value of the plaintiff’s property after the nuisance has been inflicted. The plaintiff to claim damages have to prove the damages that are a cause of nuisance. For example, if the house has become untenable due to nuisance, plaintiff will have to prove it for the court to grant damages equivalent to the value of the rent till the date of suit. S.A Basil v. Corporation of Calcutta, ILR (1940) 2 Cal 131.

(III) An injunction will be granted by the court if the plaintiff proves that the present injury is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages. The injunction is a normal remedy in cases of continuing nuisance. The principles governing grant of injunction in cases of continuing nuisance are as follows:

(i) the claimant is entitled to an injunction if the nuisance is continuous and is invading the claimant’s legal right. (ii) the wrongdoer cannot ask the court to allow him/her to pay for the wrong by way of damages so assessed by the court. (iii) the courts do have jurisdiction to order damages in lieu of injunction but it should not look like a validation of the wrong by a willing defendant ready to pay. (iv) the damages in lieu of injunction shall be awarded only in exceptional circumstances and the court should not ignore the claimant’s prima facie right. (v) courts should assess the nature of the injury, its compensability with a small amount of money, oppression on the defendant if injunction, claimant’s choice, conduct of claimant, other factors before deciding.

Generally, an injunction is not granted for future nuisances, but where there is an apprehension of real threat to life and property it may be granted. Kuldip Singh v. Subhash Chander Jain, AIR 2000 SC 1410



  1. For public nuisance:

(I)There are criminal remedies available against the public nuisance in the Indian Penal Code, 1860. A direct relief for the public nuisance on the health, safety, etc. of the public is under section 290 of the Code. Any case pertaining to public nuisance can be disposed of by a Magistrate with an order of removal of the nuisance. Such an order if not complied renders the defendant liable for punishment under section 188 of the Indian Penal Code, 1860. Pursuant to this, Magistrate can also pass an absolute order of injunction failing to comply with which makes the defendant liable for imprisonment of 2 years under section 291 of the Penal Code.

A criminal action can also be brought by an individual against the public nuisance that an injury of a substantial nature, solely inflicted has caused them more injury than on public at large.

(II) A civil action can also be brought against the public nuisance under the provisions of section 91 of the Code of Civil Procedure, 1908.


Conclusion


Nuisance is generally a private action that may or may not comprise of deliberation or intention. Though a common law tort, Indian laws have extensively dealt with, in the subject and have clarified the position by the precedents mentioned in the article. The defenses available are statutory authority and prescription with conditions however, contributory negligence has also been attributed depending on the origin of the nuisance. Indian laws provide for adequate remedy and defense in cases of nuisance and thus, is a good law on subject.


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