An overview of Nuisance and Trespass
Authored by Sulakshana Pawar
Keywords: Tort- nuisance- types of nuisance- defenses- trespass- types of trespass- remedies.
Nuisance is a tort, and unlawful interference with a person’s enjoyment some right, or in connection with it.it may be in private or public and both are actionable. Trespass is an offence done against a person or a property. It includes both civil trespass and criminal trespass. Nuisance and trespass both act interfering with the comfort, health, or safety of others.
A nuisance is generally defined as that works or causes injury, damage, annoyance, inconvenience, hurt, or discomfort to one of its enjoyment or rights of person or property.
Kinds of nuisance:
A nuisance becomes a public nuisance if it affects the reasonable comforts and convenience of the class of subjects the locality. It usually involves annoyance or danger to a reasonably large section of the general public within the vicinity. To abate a common nuisance a suit has got to be filed u/s 91 of the Civil Procedure Code.
S.28 of the Indian Penal Code provides a person who is guilty of a public nuisance, who does any illegal activity or which causes injury, danger to persons who may have occasion to use any public right.
DR. Ram Raj Singh v. Babulal, AIR, 1982 ALL, 285 : Plaintiff was a medical practitioner. Defendant had a brick grinding machine in the premises of plaintiff. The brick grinding machine affected the atmosphere and the dust was caused. Patients suffered some inconvenience. Thus, damages were issued.
A private nuisance is such a continuous infringement of a natural right of property as good in process of time give the wrongdoer and is meant or prescriptive right to do an act which was originally tortious.
Interference may cause damage to the property of the plaintiff or may cause personal discomfort to the plaintiff in the enjoyment of the property. But every interference is not a nuisance. To constitute a nuisance, the interference should be unreasonable. It is for the court to make a decision on what act amounts to unreasonable interference, and it varies according to different localities.
Underground or overground nuisance:
It is a weird explanation for nuisance. It includes hanging over the branches of trees and roots of trees under the bottom.
Nuisance on highways:
Obstructing a highway or creating dangers thereon or in its proximity may be a nuisance. The obstruction must be unreasonable. Thus, to cause the formation of queues without completely blocking the general public passage may be a nuisance. Creation of danger on highways by making excavations, projection of trees or lamps, leaving slippery or dangerous substances on the road also amount to a nuisance.
The following are the defenses to the act of nuisance:
· If an individual continues activity on a bit of land for 20 years, he acquires a prescription to continue the activity within the future. After a span of 20 years, such activity won’t be actionable for the tort of nuisance.
· If an act is permitted by the statutory authority, then it will be an entire defense and therefore the act wouldn’t qualify for nuisance.
Trespass is unlawful. It is a tort as well as crime. Trespass is committed by a person himself by entering the land or doing some through some material object.
Trespass to the person
It is a tort as well as a crime. It is an attempt to cause some hurt or injury or threat. Mere words does not mean assault. It is a gesture or preparation that leads to assault.
Battery is an actual striking of person touching him in a revengeful, rude manner. A battery includes assault. In this physical contact is necessary. It is basically physical force of person to another person.
C. False imprisonment:
False imprisonment is defined as "unlawful obstruction or deprivation of freedom from restraint of movement" In some jurisdictions, imprisonment may not be a tort of strict liability: no intention on the behalf of the defendant is required, but others require an intend to cause the confinement. It is a tort of strict liability and the proof of burden lies on the plaintiff.
To constitute false imprisonment two basic things are taken into consideration:
· The total restrain of the liberty of a person
· The detention must be unlawful.
Trespass to goods:
Trespass to goods is wrongfully taking away or moving one’s possession of goods or moving it from one place to another. A person who is in possession of goods has right to take the necessary actions and claim for damages as well.
Trespass to land:
Trespass to land involves the "wrongful interference with one's possessory rights in real estate." It’s not necessary to prove that harm was suffered to bring a claim, and is instead actionable intrinsically. While most trespasses to land are intentional, British courts have held liability holds for trespass committed negligently. Similarly, some American courts will find liability for unintentional intrusions only where such intrusions arise under circumstances evincing negligence or involve a highly dangerous activity.
Remedies for trespass:
If the possession of plaintiff is disturbed then plaintiff has right to use the reasonable force to vacant the trespass and use the reasonable force and take over the possession all by himself. It falls under an extra-judicial remedy.
Action for ejectment:
It provides speedy remedy to a person. Plaintiff can file a suit in period of six months from the dispossession date. The burden of proof lies on the plaintiff to prove that he was in the possession of the goods.
Distress damage pheasant:
When the cattle commits trespass in some other person’s land and cause some damage then the owner of the cattle has to pay for the damage caused. Also detaining any animal who has not committed any trespass is unlawful.
Nuisance and trespass both are unlawful and interfere within the rights of the person. Such interference could also be direct or consequential. However, when the plaintiff has suffered no loss in terms of cash, he will get only nominal damages. Thus, both terms have different remedies and are applied accordingly.