Nuisance: What It Is

Four factors decide it.

Locality. What is reasonable in an industrial area is not reasonable in a residential one. The rule is often put as: a person who comes to live beside a foundry cannot expect the quiet of a village.

Duration and continuity. An isolated act is rarely a nuisance; a state of affairs continuing over time usually is. A single blast may be a trespass or negligence, while blasting every night for a month is a nuisance.

Extent of the harm. Trivial interference is not actionable; the maxim is de minimis non curat lex, the law does not concern itself with trifles.

The plaintiff's own sensitivity. The standard is that of an ordinary person, and an unusually delicate trade or an unusually sensitive plaintiff cannot raise the standard for everybody.

The two kinds of harm

Material or physical damage to property, such as cracks caused by vibration, crops killed by fumes, or a wall pushed over by roots. Here the locality matters much less: no locality entitles a neighbour to damage property.

Interference with comfort and convenience, such as noise, smell and smoke. Here the locality matters a great deal, and the test of what an ordinary person would tolerate does the work.

A worked example

Farida runs a small dairy behind her house in a residential lane in Pune. Her neighbour Hari complains of four things.

One. The smell of the cattle shed. This is interference with comfort, and the answer turns on locality, duration and the standard of an ordinary person. In a residential lane a smell strong enough to keep windows shut is likely to be a nuisance.

Two. Flies from the shed settling on Hari's food. The same analysis, and the harm is more serious.

Three. Water from washing the shed seeping into Hari's wall and cracking the plaster. This is material damage to property, and locality is no answer.

Four. Hari, who runs a photographic studio in his back room, says the vibration of the milk machine ruins his long-exposure work. This engages the sensitivity rule: if an ordinary occupier would not be affected, the delicate trade does not raise the standard.

And one more. Suppose Farida's cattle stray on to Hari's land. That is not a nuisance at all; it is a trespass, because the interference is direct.

What it does NOT mean

It does not give a right to absolute comfort. The test is what an ordinary person in that locality should be expected to put up with.

It does not require the defendant to be at fault. Nuisance is not negligence, and a defendant may be liable for a state of affairs on his land which he did not create, if he adopts or continues it.

It does not protect a hypersensitive plaintiff. The standard is objective.

It does not need a direct act. Directness is the mark of trespass, not of nuisance.

Quick revision

1. Nuisance: unlawful interference with the use or enjoyment of land, or with a right over it, or with a public right.
2. Two kinds: public, an injury to the public at large, and private, an injury to a particular occupier.
3. Trespass is direct and actionable per se; nuisance is indirect and ordinarily needs damage.
4. The test is reasonableness, decided by locality, duration and continuity, the extent of the harm, and the plaintiff's ordinary rather than special sensitivity.
5. For material damage to property, locality carries little weight; for interference with comfort, it carries a great deal.
6. De minimis non curat lex: trivial interference is not actionable.

Test yourself

1. Define nuisance and distinguish it from trespass. Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it, or with a right common to the public. Trespass is a direct interference with possession. Three differences follow. Trespass requires directness, so throwing stones on to land is trespass while letting smoke drift on to it is nuisance. Trespass protects possession while nuisance protects enjoyment, so a person who is not dispossessed at all may still sue in nuisance. And trespass is actionable per se while nuisance ordinarily requires proof of damage. The same facts may give both: planting a tree across the boundary is trespass, while allowing its branches to overhang is a nuisance for as long as they do.

2. What factors decide whether an interference is a nuisance? Reasonableness, judged by four factors. The locality, since what is tolerable in an industrial area is not tolerable in a residential one, though this counts for little where actual physical damage to property is caused. The duration and continuity of the interference, since an isolated act is rarely a nuisance while a continuing state of affairs usually is. The extent of the harm, since the law does not concern itself with trifles. And the standard of an ordinary person rather than of the particular plaintiff, so that an unusually delicate trade or an unusually sensitive occupier cannot raise the standard for the neighbourhood. The question in every case is whether an ordinary occupier of that land in that locality should be expected to put up with the interference.

3. Does nuisance depend on the defendant being at fault? Not in the way negligence does. The question is whether the interference with the plaintiff's enjoyment is unreasonable, not whether the defendant took reasonable care, so a defendant who has taken every precaution may still be liable if the result is an unreasonable interference. Fault enters at the margins: a defendant is liable for a state of affairs he did not create if, knowing of it, he adopts or continues it, and reasonable care may be relevant to whether an isolated escape was a nuisance at all. But a plea that the defendant was careful, or that his activity is useful to the public, is not an answer to a nuisance.