The word 'nuisance' is derived from the French word 'nuire' and the Latin word 'nocere' which means to do hurt or to annoy. Nuisance is an injury to the right of a person in possession of property to undisturbed enjoyment of it and results from an improper use by another person of his own property.
Nuisance is different from trespass because it is regarded as an injury to some right accessory to possession but no to possession it self.
Nuisance can be divided into Two broad categories.
1) public nuisance.
2) private nuisance.
1) public nuisance :
According to section 268 of I.P.C. public nuisance is a criminal offence. A person is guilty of a public nuisance who does any act, or is guilty of any illegal omission, which causes any common injury, danger or annoyance, to the public or to the people in general who dwell, or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
public nuisance is an act affecting the public at large, or some considerable portion of it, and 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 tends to degrade public morals have always been considered public nuisance e.g. carrying on trades which cause offensive smells or intolerable noises, keeping an inflammable substance like gunpowder in large quantities, etc. They are dealt with by or in the name of the state.
Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance, the following must be proved.
1) he must show a particular injury to himself beyond that which is suffered by the rest of public.
2) such injury must be direct and not a mere consequential injury.
3) the injury must be substantial character.
Soltan v/s. De held (1851) 2 sim NS 133 [ Simon's reports, new series]
The plaintiff resided in a house next to a roman catholic chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was public nuisance and the plaintiff was held entitled to an injunction.
2) private nuisance :
It may be defined as unlawful interference with another's use and enjoyment of property or some right over or in connection with property. Action for nuisance lies for the protection of plaintiff's property rather than for damages.
Private nuisance is the using or authorizing the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property by physically injuring his property or by interfering materially with his health, comfort or convenience. Private nuisance include acts leading to
a) wrongful disturbances of easements ( restrictions of natural rights ) or servitudes. E.g. obstruction to light and air, disturbance of right to support or
b) wrongful escape of deleterious substance into another's property such as smoke, smell, fumes, gas, noise, water, filth, heat, electricity, disease-germs, trees, vegetation, animals, etc.
c) improper use of one's own property resulting in physical injury to the person, property or comfort of the occupier of another property. Some of the actions for discomfort are vibrations caused by machinery and dust etc. It is actionable only as as a nuisance if done maliciously.
If a nuisance is created on a highway by a private individual, liability would arise if any person is injured as a result of what has been done irrespective of negligence. If anything is placed on a highway which is likely to cause an accident being an obstruction to those who are using the highway on their lawful occasion such as vehicle unlighted and unguarded standing there at the night and an accident results, there is an actionable nuisance.
Ware v/s. Garston
A trailer attached to a lorry was kept unattended on the highway. At night time no rear light was shown. A motorcyclist ran into the trailer. It was held that it was an obstruction on the highway and as such as a public nuisance.
Quietness and freedom from noise are indispensable to the full and free enjoyment of a dwelling-house. No proprietor has an absolute right to create noises upon his own land so as to cause nuisance to his neighbours or public. As to the extent or amount of noise or annoyance from noise is sufficient to sustain an action depends entirely on the surrounding circumstances like the place where the time when the alleged nuisance, the mode of committing it, how and the duration of it, whether temporary or permanent, occasional it is according to that to that of man of ordinary habits and not of man of fastidious taste, or of over-sensitive nature. In a locality devoted to noisy trades such as printing and allied trades, if a printing house or a factory subjects the occupier of an adjoining residence to such an increase of noise as to interfere substantially with the ordinary comfort of human existence according to the standard of comfort prevailing in that locality, occupier to an injunction.
Lets See Who can sue for nuisance :
The actual occupier of premises can alone bring an action for nuisance of a temporary character. If the injured property is in the occupation of tenants, the landlord or reversioner has no right of action. The latter can bring an action only if the injury complained of is of a permanent nature e.g. obstruction of light and injurious to the property and detrimental to the letting value of the house.
Who is liable for nuisance :
The action must be brought against the hand committing the injury or against the owner for whom the act was done. It will lie against the person
1) who creates or continues a nuisance or authorizes or suffers the creation of a nuisance or
2) who let's or sells property with a nuisance on it.
A person is liable for a nuisance constituted by the state of his property.
a) if he causes it,
b) if by the neglect of some duty he allowed it to arise and
b) if by the neglect of some duty he allowed it to arise and
3) if, when it has arisen, without his own act or default, he omits to remedy it within a reasonable time after he became or ought to have become aware of it .
The plaintiff must prove the following in an action for public nuisance
a) a public nuisance.
b) special damage to him arising as a direct consequence of the nuisance. If it was due to the fault of the plaintiff himself or a third party, the defendant of the nuisance cannot be made liable.
c) the defendant was the occupier or person in possession and control of the premises with the nuisance on it.
Remedies for private nuisance
Remedies for public nuisance
b) criminal action.
Who can sue in public nuisance ?
The attorney general in English and the advocate general ( or the collector ) in India can take an action for public nuisance.
A private individual can also sue for public nuisance if the shows that :
a) he has suffered some special damage apart from the general damage suffered by the public.
b) the injury was direct and not consequential.
c) the injury was substantial.