Nuisance: What It Is
Chapter Thirty-Seven
Syllabus topic 2.4, "Torts affecting person &Property: Nuisance, Negligence, Fraud"
Pages 151 to 153 of 434
In one line
Nuisance is an unlawful interference with a person's use or enjoyment of land, or with some right over it, or with the public's use of a public place.
In the wording a student can write in an exam: nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it, and it is of two kinds: a public nuisance, which is an act or omission causing common injury, danger or annoyance to the public or to a section of it, and a private nuisance, which interferes with a particular person's use or enjoyment of his land; the essence of the tort is the unreasonableness of the interference, and unlike trespass it is ordinarily an indirect interference requiring proof of damage.
The word
Nuisance comes through French from the Latin nocere, to hurt. The interest protected is not possession, which trespass protects, but enjoyment: the ability to use land in comfort.
Nuisance against trespass, the distinction that decides which action lies
| Trespass | Nuisance | |
|---|---|---|
| Nature of interference | Direct | Indirect or consequential |
| What is interfered with | Possession | Use or enjoyment |
| Damage | Not required, actionable per se | Ordinarily must be proved |
| Example | Throwing stones on to the land | Letting smoke or noise drift on to it |
| Example on the boundary | Planting a tree on the neighbour's land | Letting the roots or branches grow across |
The same facts often support both, and the classical illustration is the tree: planting it over the boundary is a trespass, letting its branches grow over is a nuisance while they remain, and the fruit that falls belongs to the tree's owner.
The two kinds
Public nuisance is an interference with a right common to the public: obstructing a highway, polluting a river, keeping an unsafe building beside a road, carrying on an offensive trade in a crowded locality. It is primarily a crime, and only a person who proves special damage may sue in tort. Chapter [Public Nuisance] works it out.
Private nuisance is an interference with a particular occupier's use or enjoyment of his own land: smoke, smell, noise, vibrations, heat, water, roots, and the escape of things that make life on the land uncomfortable. Chapter [Private Nuisance] works it out.
The one idea that runs through both: reasonableness
No occupier has a right to absolute quiet, clean air or a perfect view, and no occupier may do exactly as he pleases on his own land. Every case is a compromise, and the compromise is expressed as reasonableness: would an ordinary person, occupying that land in that locality, regard the interference as more than he should be expected to put up with?
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