Nuisance

1. Meaning

“Nuisance” comes from the French nuire, to do hurt or annoy. Winfield defines it as “unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it.” Nuisance protects the occupier’s enjoyment of land; trespass protects possession against direct entry. Trespass is actionable per se; nuisance (other than some interference with servitudes) requires proof of damage.

2. Public and private nuisance

• Public nuisance is an act or omission that causes common injury, danger or annoyance to the public or to people in general who live or have property in the vicinity: obstructing a highway, polluting a public water source, a dangerous projection over a road. It is primarily a crime. A private person can sue in tort only if he proves special damage, that is, damage over and above that suffered by the public at large. Under section 91 of the Code of Civil Procedure, 1908, a suit for a declaration and injunction about a public nuisance may also be brought by the Advocate-General, or by two or more persons with the leave of the court, even without special damage. A Magistrate can order removal of a public nuisance under the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly section 133 CrPC), the power the Supreme Court enforced against a municipality in Municipal Council, Ratlam v. Vardhichand, 1980 INSC 138, (1980) 4 SCC 162.
• Private nuisance is unreasonable interference with a person’s use or enjoyment of land or of a right over it. It is a tort only. It takes two forms: physical injury to property (cracks from vibration, crops damaged by fumes) and substantial interference with comfort or enjoyment (noise, smoke, smell, dust).

3. Essentials of private nuisance

• Unreasonable interference. Everyone must put up with some give and take between neighbours. The question is whether the interference is more than an ordinary person should be expected to bear. Courts weigh the locality (“what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”: Sturges v. Bridgman, 1879), duration and intensity, and malice (Christie v. Davey, 1893). Locality is irrelevant where there is physical damage to property (St. Helen’s Smelting Co. v. Tipping, 1865, fumes from a copper smelter damaging trees).
• Sensitivity. No one can increase his neighbour’s liabilities by putting his land to a specially sensitive use. In Robinson v. Kilvert (1889) heat from a cellar damaged unusually delicate brown paper stored above; no nuisance.
• Interference with use or enjoyment of land, or with an easement such as light or support.
• Damage. Material damage to property or substantial discomfort.

4. Indian cases

• Radhey Shyam v. Gur Prasad (Allahabad High Court, 1978). The defendant installed a flour mill in a residential locality, next to the plaintiff’s house. The noise of the mill and the smoke from it caused substantial discomfort. The court held it an actionable private nuisance and restrained the running of the mill. Substantial addition to the noise of a locality, by a new trade, which materially interferes with ordinary comfort, is a nuisance even in a noisy area.
• Ram Raj Singh v. Babulal (Allahabad High Court, 1982). The defendant set up a brick-grinding machine next to the plaintiff’s premises, a doctor’s clinic. The red brick dust polluted the air, entered the consulting room and affected the doctor and his patients. The court held it a private nuisance and granted a permanent injunction restraining the defendant from running the machine. Interference with health is the clearest case of substantial interference with enjoyment of land.

5. Defences

Valid defences:

• Prescription. A right to commit a private nuisance may be acquired by peaceable and open enjoyment as an easement for twenty years (section 15 of the Indian Easements Act, 1882). Time runs from when the activity became a nuisance to the plaintiff. There is no prescriptive right to commit a public nuisance.
• Statutory authority, subject to the limits in Metropolitan Asylum District v. Hill (1881) (see the note on general defences).

Ineffective defences:

• Coming to the nuisance. It is no defence that the plaintiff moved to the nuisance. In Sturges v. Bridgman a doctor built a consulting room next to a confectioner’s kitchen whose machinery had run for years; he obtained an injunction.
• Public benefit of the activity.
• Reasonable care: nuisance is concerned with the result, not with the care taken.
• Act of many. It is no defence that the defendant’s contribution alone would not be a nuisance if the combined effect is.

6. Remedies

• Damages for the loss suffered.
• Injunction, temporary under Order XXXIX of the Code of Civil Procedure or permanent under sections 37 to 42 of the Specific Relief Act, 1963. The injunction is the usual remedy for a continuing nuisance, as in both Allahabad cases.
• Abatement: the injured party may remove the nuisance himself, for example by cutting overhanging branches, without unnecessary damage and after notice where entry on the other’s land is needed.

7. Problem: the cinema hoarding

The owner of a cinema has put up a large wooden hoarding advertising his films, projecting from the building over the public road. One day it falls and injures a passer-by. Advise the passer-by.

Issue. Whether the owner is liable in public nuisance, negligence or strict liability, and whether it matters that the fall was caused by decay he did not know of or by a contractor’s faulty work.

Law. In Tarry v. Ashton (1876) a heavy lamp projected from the defendant’s house over the highway. He had employed an independent contractor to repair it, but it fell on a passer-by. The defendant was held liable: a person who keeps an artificial projection over a highway is under a duty to make it safe, and the duty cannot be delegated to a contractor. A projection over a highway is a public nuisance if it is dangerous, and the injured person has special damage. In negligence, the plaintiff must show duty, breach and damage; res ipsa loquitur applies to objects falling from premises under the defendant’s control (Byrne v. Boadle, Scott v. London and St. Katherine Docks).

Application.

• Nuisance. The hoarding projects over a public road and, once unsafe, endangers everyone using it. That is a public nuisance. The passer-by suffered personal injury, which is special damage beyond the inconvenience to the public. The owner cannot escape by showing that a contractor put it up or maintained it (Tarry v. Ashton).
• Negligence. The owner owes road users a duty to keep the hoarding secure. A wooden hoarding that falls has not been inspected or maintained with reasonable care. The plaintiff can invoke res ipsa loquitur: hoardings do not fall if those in control take proper care, and the owner had control. The burden then moves to the owner to explain the fall consistently with due care, for example an unprecedented storm (act of God).
• Strict liability. The plaintiff may argue Rylands v. Fletcher, but a hoarding is a common structure and probably not a “non-natural use” of land, and the harm did not arise from an escape from the owner’s land in the usual sense. The rule in Tarry v. Ashton already gives near-strict liability for projections over a highway, which makes this argument unnecessary.

Conclusion. The passer-by should sue the cinema owner in public nuisance, with negligence as an alternative pleading. The owner is liable even if a contractor erected the hoarding, unless he proves an act of God. The passer-by can also seek an injunction requiring the other hoardings to be secured or removed.

How this is examined

As an essay: “Define nuisance. Distinguish public from private nuisance and state the defences.” Use the two Allahabad cases as the Indian examples. As short notes: special damage in public nuisance, coming to the nuisance, or nuisance and trespass. The hoarding problem appeared in the January 2026 KSLU paper; answer it under all three heads, as above, and finish with Tarry v. Ashton.