Private Nuisance

Coming to the nuisance is no defence. It is no answer that the plaintiff moved in after the defendant's activity began, because the law does not allow one occupier to fix the character of a locality against later comers.

Public benefit is no defence. That the defendant's factory employs hundreds does not entitle it to make life on the neighbouring land intolerable; the point may bear on whether an injunction or damages is the proper relief.

The hypersensitive plaintiff is not protected. Where an ordinary occupier would not be affected, an unusually delicate use of land gives no action, and the Indian illustration of the principle is the refusal to treat annoyance to feelings as an actionable injury in Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13.

Facts. In that case the plaintiffs sued in the City Civil Court at Ahmedabad for an injunction restraining the exhibition of the film Jai Santoshi Maa, saying it hurt the religious feelings of a section of Hindus, and applied for a temporary injunction; the trial judge refused it, holding that no civil right of theirs was involved.

Held. The appeal was dismissed. Hurt to religious feelings has not been recognised by the courts as a civil actionable wrong; mere annoyance to feelings, without any pecuniary or tangible loss, cannot found an injunction; and a plaintiff must show a substantial injury which the court can recognise.

Why it matters here. It shows where the boundary of the tort lies. The law protects the enjoyment of land against interferences an ordinary person would find substantial, not every feeling that can be hurt.

A worked example

A bakery starts night work next to Sharmila's house in a residential colony.

The ovens run from midnight to four. Noise and heat interfere with sleep. In a residential locality that is likely to be a nuisance: the interference is with comfort, it is continuous, and an ordinary occupier would find it substantial.

Flour dust settles on her terrace and stains the walls. That is material damage to property, and here the locality counts for little.

Sharmila keeps rare orchids which die from the heat, though ordinary plants would not. The hypersensitivity rule applies: if an ordinary occupier's plants would have survived, the orchids give no separate claim.

Sharmila moved in two years after the bakery opened. Coming to the nuisance is no defence.

The bakery says it supplies bread to three hospitals. Public benefit is no defence, though it may persuade a court to award damages rather than close the bakery at night.

The bakery turns up its music at 2 a.m. only when Sharmila complains. Malice may turn what would otherwise be a reasonable use into an unreasonable one.

What it does NOT mean

It does not require the defendant to be negligent. The question is whether the interference is unreasonable, not whether care was taken.

It does not require the plaintiff to own the land. Occupation with an interest in the land is enough, and an owner out of occupation may sue for permanent injury to his reversion.

It does not protect against every discomfort. The standard is that of an ordinary person, and trifles are outside the law.

It is not defeated by the plaintiff having come to the nuisance.

Quick revision

1. Private nuisance: unreasonable interference with the use or enjoyment of land, or with a right over it.
2. Essentials: unreasonable interference, with land or a right over it, causing material damage or substantial discomfort.
3. Who may sue: the occupier, and an owner for permanent injury to the reversion.
4. Who may be sued: the creator, the occupier who continues or adopts, and in three cases the landlord.
5. Malice may make an otherwise reasonable use unreasonable.
6. Coming to the nuisance and public benefit are not defences; hypersensitivity gains nothing.
7. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13: hurt to religious feelings is not a civil actionable wrong; mere annoyance to feelings will not found an injunction.

Test yourself

1. What are the essentials of private nuisance? Three. There must be an unreasonable interference, judged by the standard of an ordinary occupier of that land in that locality, having regard to the locality itself, the duration and continuity of the interference, its extent, and the fact that an unusually sensitive plaintiff is not protected. The interference must be with the use or enjoyment of land, or with some right over or in connection with it, such as an easement of way, light, air or support. And there must be damage, either material damage to the property, in which case the locality counts for little, or substantial interference with comfort and convenience, in which case it counts for much; where an easement is interfered with, damage is presumed.

2. Who may sue and who may be sued in private nuisance? The occupier of the affected land may sue, because the interest protected is the use and enjoyment of land, and an owner out of occupation may sue where the nuisance causes permanent injury to his reversionary interest; a bare licensee with no interest in the land ordinarily cannot. Three classes may be sued: the creator of the nuisance, whether or not he occupies the land from which it comes; the occupier who continues or adopts a nuisance created by a predecessor, a trespasser or by nature, once he knows of it and fails to abate it; and the landlord, where he authorised the nuisance, where it existed at the date of the letting and he knew or ought to have known of it, or where he had undertaken to repair.

3. "Coming to the nuisance is no defence." Explain, and say what defences do exist. It is no answer that the plaintiff acquired or came to occupy his land after the defendant's activity had begun, because otherwise the first occupier of a locality could fix its character permanently and later comers would take it as they found it, however unreasonable the interference. Nor is it a defence that the defendant's activity benefits the public, though that may persuade a court to award damages instead of an injunction, or that the defendant took all reasonable care, since nuisance is not negligence. The defences that do exist are prescription, where the nuisance has been continued as of right for twenty years so that an easement to commit it has been acquired, and statutory authority, where the legislature has authorised the very thing complained of; chapter [Defences and Remedies in Nuisance] works both out.