Constituents of the Tort of Nuisance
Authored By- Pooja Koul
Keywords- Breach, Nuisance, Nocum Entum, Tort, Wrongful act
The author of this article discusses the nuisance and its essential elements and also its kinds and defenses available. Nuisance is something that everybody faces in their day to day life. For example, honking on the roads, loud music playing in the neighbor, etc. all these activities cause inconvenience and discomfort to an individual which results in annoyance. These activities interfere with the pleasure of human property. This article concludes that nuisance has become a part of every human being's life and the government has assured the fairness among both the parties involved.
Introduction of nuisance as a tort and its essential elements:
A tort is a wrong which gives rise to a civil remedy for which compensation is recoverable. It is an act which discriminately affects a person in private legal rights. Word tort is derived from a Latin term tortum which means twisted. Nuisance is defined as a thing that is causing inconvenience or annoyance. It is a word that is derived from the French word nuire it means to do hurt or to annoy. Latin nuisance is known as nocere, which means to cause harm. Smell, noise, sight, etc., all these things can result in annoyance and it can be from immaterial things. Nuisance is an illegal act or indirect illegal interferences to the enjoyment of human property or causing any kind of discomfort.
“Nuisance is anything done to hurt or annoyance of the tenements of another, or of the lands, one which doesn’t amount to trespass.”
- by Stephen
“A tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligation”
- by Salmond
Essential elements of the tort of Nuisance are-
· Wrongful act- Those acts which are done with the intention of violation of legal rights of other individual is known as wrongful acts.
· Damage, loss, annoyance caused to another individual- Because of a person’s acts other individual faces damage and loss results in the tort of nuisance.
Kinds of Nuisance
Nuisance is categorized into two kinds-
Public nuisance- A common nuisance that causes common injury, danger to the public, or the people in general. It is an unlawful interference with a right common to the general public. It affects the public at large and equally. Anything which ruins comfort, convenience, safety, or the health of the public and also degrades public morals is considered as a public nuisance. It comes into the domain of criminal acts under Indian law. Section 268 of the Indian penal code, defines it. To avoid the multiplicity of proceeding both civil and criminal, public nuisance does not allow civil action. Every individual has a private right of action concerning a public nuisance.
In Attorney General v. P.Y.A. Quarries, 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.
Private nuisance- A nuisance that interferes with the right of a specific person, individual, or entity is considered as a private nuisance. This lawsuit generally arises between neighbors who share one property and gets negatively affected by his/her neighbor. It gives the affected person a claim of Right in Personam. A person is not liable for a private nuisance unless: he causes it, or neglect of some duty he allows it to arise or arises without his act. A private nuisance is classified into two types: Damage to property and Physical discomfort.
In Data Mal Chranji Lal v. Lodh Prasad, 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 the noise to follow their normal avocations during the day. They did not have quiet rest at night also.
Defenses to the tort of Nuisance
Following are the valid defenses to an action for nuisance-
Prescription- A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law. If a nuisance has been peacefully and openly going on without any kind of interruption then the defense of prescription is available to the party. On the expiration of this term of 20 years, the nuisance becomes legalized as if it had been authorized in its commencement by a grant from the owner of the land. It is explained under section 26 of the limitations act and section 15 of the easements act.
Statutory authority-When a statute authorizes the doing of a particular act or the use of land in a way, all the remedies whether by action or indictment or charge, are taken away.
Nuisance arises commonly every day in everyone’s life; it creates annoyance amongst people of society. It is defined in the Indian penal code as an act that causes injury and annoyance. The Indian courts have borrowed a lot from English law as well as common law and also made their precedents. This has helped a nuisance to develop extensively in the field of law. The government also assures the fairness and well-being of both the parties which are involved such as in public nuisance the society at large is being affected and in private nuisance the person who is being affected.
AIR 1960 All 632