Public Nuisance and Private Nuisance - A Comparative Study

DISTINCTION BETWEEN PUBLIC NUISANCE AND
PRIVATE NUISANCE
Law of Torts
SUBMITTED BY: SUBMITTED TO:
Akshita Thapa Sneha Sharma
B.A. LLB Hons. Faculty of Torts
Roll. Number: 2106 Chanakya National Law University
CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE NUISANCE
DECLARATION BY THE STUDENT
I hereby declare that the work report in the B.A L.L.B. (Hons.) Project report entitled
‘DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE NUISANCE’
submitted at CHANAKYA NATIONAL LAW UNIVERSITY is an authentic record of my
work carried out under supervision of Ms. Sneha Sharma. I have not submitted this work
elsewhere for any other diploma or degree. I am fully responsible for my Project report.
2
ACKNOWLEDGEMENT
Every successful initiative is always supported by the near and the dear ones. I am thankful to
Ms. Sneha Sharma , Faculty of Law of Torts, Chanakya National Law University, Patna , for her
constant help and support because of which I have thereby gained knowledge, insight and
thought, which has helped me in furthering my understanding of the topic.
I am also grateful to the library staff who readily provided the books I needed. They provided a
cordial and conductive environment needed for the accomplishment of the project.
I would like to acknowledge the contribution my friends and seniors,especially for their
coordination and support.
3
Contents
INTRODUCTION .......................................................................................................................... 5
Concept of nuisance ........................................................................................................................ 6
What is meant by nuisance? ........................................................................................................ 6
HISTORICAL BACKGROUND: .................................................................................................. 6
HISTORICAL MEANING: ............................................................................................................ 7
Public nuisance ............................................................................................................................... 8
When public nuisance converted into private nuisance? ............................................................ 8
Public nuisance cases .................................................................................................................. 9
Dr. Ram Raj Singh v. Babulal ............................................................................................... 10
Rose v Miles [1815], ............................................................................................................. 10
Campbell v. Paddington Corporation [1911], ...................................................................... 10
PRIVATE NUISANCE: ............................................................................................................... 11
Essential ingredient: .................................................................................................................. 12
Unlawful interference ............................................................................................................ 12
Interference with the use or enjoyment of land ......................................................................... 13
Injury to the property ............................................................................................................. 13
Injury to comfort or health..................................................................................................... 15
FACTORS THAT LEAD TO PRIVATE NUISANCE: ........................................................... 17
Defences to private nuisance ........................................................................................................ 20
Statutory Authority.................................................................................................................... 20
Prescriptive right or acquired right ........................................................................................ 20
The distinction between public and private nuisance ................................................................... 21
Conclusion .................................................................................................................................... 24
Bibliography ................................................................................................................................. 25
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INTRODUCTION
Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or
some right over, or in connection with it. 1The word nuisance has been derived from the French
word ‘nuire’ and Latin word ‘nocere’ which in its legal sense means “annoyance” or “harm”; and
indeed the element of unlawful ‘ annoyance ‘ is the only thing common to all nuisances. Law of
nuisance attempts to preserve a balance between conflicting interests where one thinks that he
should use his land in a manner in which he likes and on the other hand, his neighbor wants that
he should have a quiet enjoyment of his land. There is no controversy in the modern world that
everyone must endure some degree of noise, dust, smell, smoke, vibration, the escape of effluent
etc. from his neighbor- otherwise Nuisance is of two kinds:
1. Public or common nuisance
2. Private nuisance, or tort of nuisance .
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance
interference with the right of public in general and is punishable as an offence. For ex.
Obstructing a public way by digging a trench , or constructing structures on it. Private nuisance
is a civil wrong that affects a single individual or a definite number of persons in the enjoyment
of some private right which is not common to the public. In other words, a private nuisance is a
substantial and unreasonable interference with the private use and enjoyment of one’s land.
Examples include interference with the physical condition of the land, disturbing the comfort of
its occupants, or threatening future injury or disturbance. The origin of private nuisance liability
is purely tortious in character and not criminal
It is to be noted that a private nuisance exists only where one is injured in relation to a right that
s/he enjoys by reason of his/her ownership of an interest in land. Private nuisance includes all
injuries to an owner or occupier in the enjoyment of the property of which s/he is in possession,
1
https://www.merriam-webster.com/dictionary/nuisance
5
without regard to the quality of the tenure. However, a nuisance may be a public and a private
one at the same time.
Concept of nuisance
What is meant by nuisance?
Nuisance has been defined to be anything done to hurt or annoyance of the land, tenements or
hereditaments of another, and not amounting to a trespass. The word “nuisance” is derived from
the French word nuire, to do hurt, or to annoy. Blackstone described nuisance (nocumentum) as
something that “worketh hurt, inconvenience, or damage.”
A nuisance may be caused by negligence, and there may be case in which the same act or
omission will support an action of either kind, but generally speaking. These two classes of
action are distinct, and the evidence necessary to support them is different. Nuisance is no branch
of the law of negligence, and it is no defense that all reasonable care to prevent it is taken.
HISTORICAL BACKGROUND:
In the late 19th and early 20th centuries, the law of nuisance became difficult to administer, as
competing property uses often posed a nuisance to each other, and the cost of litigation to settle
the issue grew prohibitive. As such, most jurisdictions now have a system of land use
planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning
generally overrules nuisance. 2For example: if a factory is operating in an industrial zone,
neighbors in the neighboring residential zone can't make a claim in nuisance. Jurisdictions
without zoning laws essentially leave land use to be determined by the laws concerning nuisance.
Similarly, modern environmental laws are an adaptation of the doctrine of nuisance to modern
complex societies, in that a person's use of his property may harmfully affect another's property,
2
https://uwe-repository.worktribe.com/output/838521
6
or person, far from the nuisance activity, and from causes not easily integrated into historic
understandings of nuisance law.
HISTORICAL MEANING:
The meanings of the term nuisance has taken many different forms over the years and were often
very vague in its definition. In general, the term is characterized by a simple annoyance or hurt
caused by some person or thing. Historically, nuisance referred to the denial of someone’s rights
to use land. In the thirteenth century, the writ of nuisance was available to plaintiffs to take
action against those injuries which were committed wholly on the land of the defendant, but
interfered with the rights of the plaintiff. This was the beginnings of the modern day private
nuisance. An extension of private nuisance eventually gave rise to public nuisance as well. Any
interference on the rights of the public, or the rights of the crown, was considered to be a crime.
These crimes first developed from wrongdoings on the property of a public highway, or other
public property. Because of the similarity between crimes against private property and public
property, these wrong doings were also labeled as nuisances. The term became so widely used
that it began to describe all types of crime against the crown or against private citizens. A private
nuisance is primarily based on a civil wrong in which the rights of a private individual, in which
a wrongdoing has interfered with the plaintiff's land. A public nuisance refers instead to a crime
which affects the rights of the public at large. It is a very broad term that encompasses many
different offenses. A public and private nuisance actually has very little comparison, except in
name. The nature of the offenses is actually very different, but they both include some kind of
interference by the wrongdoer that disturbs the plaintiff, or the public. In order for a defendant to
be guilty of a private nuisance, he must have substantially interfered with the right of a plaintiff's
enjoyment of land. A public nuisance must affect the community in general. Absolute nuisances
are nuisances for which the defendant is strictly liable. Certain activities are so sure to cause a
nuisance that they are labeled this way. Setting off fireworks in public, storing flammable
substances on one's property, or even such things as extremely bad odors, will qualify as absolute
nuisances.
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Public nuisance
Nuisance is divided into public and private, although it is quite possible for the same conduct to
both. A public nuisance is a crime, while a private nuisance is only a tort. a public nuisance or
common nuisance is one which materially affects the reasonable comfort and convenience of life
of a class of the public who come within the sphere or neighborhood of its operation, the
question whether the number of persons affected is sufficient to constitute a class is one of fact in
every case, and it is sufficient to show that a representative cross-section of that class has been so
affected for an injunction to issue.3 The term public nuisance covers a wide variety of minor
crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community.
Violators may be punishable by a crime sentence, a fine or both.
A defendant may also be required to remove a nuisance or to pay the cost of removal. For
example, a manufacturer who has pollutes a stream might be fined and might also be order to pay
cost of cleanup. Public nuisances may interfere with public health, such as in the keeping of
diseased animals or a malarial. Public safety includes shooting fireworks in the streets, storing
explosives, practicing medicine without a license, or harbouring a vicious dog. Houses of
prostitution, illegal liquor establishments, gaming houses and unlicensed prizefights are
examples of nuisances that interfere with public morals. Obstructing a highway or creating a
condition make travel unsafe or highly disagreeable are examples of nuisance threatening the
public convenience.
When public nuisance converted into private nuisance?
In certain cases, when any person suffers some special or particular damages, different from
what is inflicted upon public as a whole, a civil right of action is available to the person injured.
What is otherwise a public nuisance also becomes a private nuisance so far as the person
suffering special damage is concerned. The expression “special damage” in this context means
damage caused to a party in contradiction to the public at large. For example, digging trench on a
Volume 120 No. 5 2018, 2313-2321 ISSN: 1314-3395 (on-line version) url: http://www.acadpubl.eu/hub/ Special
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public highway may cause inconvenience to the public at large. No member of the public, who is
thus, obstructed or has to take a diversion along with others, can sue under civil law. But if
anyone of them suffering suffers more damages than suffered by the public at large, e.g., is
severely injured by falling into the trench, he can sue in tort. In order to sustain a civil action in
respect of a public nuisance, proof of special and particular damage is essential.
Pollution of a river might constitute both a public and a private nuisance. This is known as a
mixed nuisance.
The proof of special damage entitles the plaintiff to bring civil action for what may be otherwise
a public nuisance. Thus, if the standing of horses and wagons for an unreasonably long time
outside a man’s hose creates darkness and bad smell for the occupants of the house and also
obstructs the access of customers into it, the damage is ‘particular, direct and substantial’ and
entitles the occupier to maintain an action.
“A person is guilty of public nuisance who does any act, or is guilty of an illegal omission which
causes any common injury, danger or annoyance to the public or there people in general who
dwell or occupy property I the vicinity or which must necessarily cause injury, obstruction,
danger, or annoyance to person who may have occasion to use any public right.” Sec.268 I.P.C.
Public nuisance cases
Dr. Ram Raj Singh v. Babulal

Campbell v. Paddington Corporation [1911]
Rose v Miles [1815]
Noble v Harrison [1926]
Griffiths v Liverpool Corporation [1974]
Cambridge Water v Eastern Counties Leather [1994] 2 AC 264
9
Cases in detail
Dr. Ram Raj Singh v. Babulal4
The defendant created a brick grinding machine adjoining the premises of the plaintiff, who was
a medical practitioner. The brick grinding machine generated dust, which polluted the
atmosphere. The dust entered the consulting chamber of the plaintiff and accused physical
inconvenience to him and patients, and their red coating on clothes, caused by the dust, plaintiff
had been proved and a permanent injunction was issued against the defendant restraining him
from running his brick grinding machine there.
Rose v Miles5 [1815],
The defendant wrongfully moored his barge across a public navigable creck. This blocked the
way for plaintiff’s barges and the plaintiff had to incur considerable expenditure in unloading the
cargo and transporting the same by land. It was held that there were special damages caused to
plaintiff to support his claim.
Campbell v. Paddington Corporation [1911], 6
The plaintiff was the owner of a building in London. The funeral procession of King Edward VII
was to pass from highway just in front of the plaintiff’s building. An uninterrupted view of the
procession could be had from the window of the plaintiff’s building. The plaintiff accepted
certain payments from certain person and permitted them to occupy seats in the first and second
floor of her building. Before the date of the date of the said procession, the defendant corporation
constructed a stand on the highway in front of the plaintiff building to enable the members of the
Corporation and its guest to have a view of the procession. This structure now obstructed the
view from the plaintiff’s building. Because of the obstruction, the plaintiff was deprived of the
profitable contract of letting seats in her building. She filed a suit against the corporation
4
AIR 1982 All 285
5
288 N.E.2d 779 (1972)
6
1911-1 KB 869
10
contending that the structure on the highway, which was a public nuisance, had caused special
loss to her. It was held that she was entitled to claim compensation.
PRIVATE NUISANCE:
A private nuisance is a civil wrong that affects a single individual or a definite number of
persons in the enjoyment of some private right which is not common to the public. In other
words, a private nuisance is a substantial and unreasonable interference with the private use and
enjoyment of one’s land. Examples include interference with the physical condition of the land,
disturbing the comfort of its occupants, or threatening future injury or disturbance. The origin of
private nuisance liability is purely tortious in character and not criminal.
It is to be noted that a private nuisance exists only where one is injured in relation to a right that
she/he enjoys by reason of his/her ownership of an interest in land. Private nuisance includes all
injuries to an owner or occupier in the enjoyment of the property of which s/he is in possession,
without regard to the quality of the tenure. However, a nuisance may be a public and a private
one at the same time.
A private nuisance is an interference with a person's enjoyment and use of his land.7 The law
recognizes that landowners, those rightful in or possession of land, have the right the unimpaired
conditionof the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of
the land include vibration or blasting thatdamages a house; destruction of crops; raising of a
water table; or the pollution of soil, a stream, or an underground water supply.
Examples of nuisances interfering with the comfort, convenience, or health of an occupant are
foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures.
Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who
keeps a vicious dog, even though an injury is only threatened and, has not actually occurred.
An attractive nuisance is a danger likely to lure children onto a person's land. For example, an in
dividual who has a pool on his property has a legal obligation to take reasonable precautions,
7
https://legal-dictionary.thefreedictionary.com/private+nuisance
11
such as erecting a fence, to prevent foreseeable injury to children. Trespass is sometimes

confused with nuisance, but the two are distinct. A trespass action protects against an invasion of
such as one's right to exclusive possession of land. If a landowner drops a tree across her
neighbor's boundary line she has committed a trespass; if her dog barks all night keeping the
neighbor awake, she may be liable for nuisance.
Essential ingredient:
Unlawful interference
Private nuisance requires an unreasonable use of land by the defendant which leads to an
unreasonable interference with the claimant's use or enjoyment of their own land. 8This
requires a balancing exercise of competing rights often referred to as the principle of give and
take. Unreasonable interference alone is insufficient:
In assessing the reasonableness of the use and reasonableness of the interference, the courts take
all the circumstances into account. In particular the courts will consider:
1. The nature of the locality/neighbourhood

2. Duration
3. Sensitivity
4. Malice
1. Locality/ Neighbourhood
The reasonableness of the use of land will be assessed with regard to the nature of the locality in
deciding whether there exists an actionable nuisance.
2. Duration
8
https://www.darlingtons.com/blog/nuisance-unlawful-interference-with-land
12
Most nuisances consist of a continuing state of affairs. In most instances the claimant is seeking
an injunction to prevent the continuance of such nuisances. In general the longer the nuisance
lasts the greater the interference and the greater the likelihood of it being held to be an unlawful
interference. However, an activity which is temporary may constitute a nuisance.
3. Sensitivity
If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant
will not be liable unless the activity would have amounted to a nuisance to a reasonable person
using the land in a normal manner. If, however, the claimant has established that the defendant
has infringed their right to ordinary enjoyment of the land, they can also claim damages for any
damage incurred to unusually sensitive property.
4. Malice
Where the defendant acts out of malice, the actions are more likely to be held unreasonable.
Interference with the use or enjoyment of land
Interference may cause either:

1) Injury to the property itself, or
2) Injury to comfort or health of occupants of certain property.
Injury to the property
An unauthorized interference with the use of the property of another person though some
object, tangible or intangible, which cause damage to the property, is actionable as
nuisance. It may be by allowing the branches of a tree to overhang on the land of another
person, or the escape of the roots of the tree, water, gas, smoke or fumes etc. on the
neighbors land or even by vibration.
13
In St. Helen’s Smelting Co. v Tipping9 fumes from the defendant’s company works
damaged plaintiff’s trees and shrubs. Such damage being an injury to property, it was
held that the defendants were liable. The plea that locality was devoted towards of that
kind was unsuccessful.
i. Nuisance to incorporeal property
Interference with the right of support of land and buildings : It may be noted that
mere removal of the support or excavations in not actionable, substantial damage
has got to be proved.Sec.34, Indian Easement Act, states that “The removal of the
means of support to which a dominant owner is entitled does not give rise to right
to recover compensation, until and unless substantial damage is actually
sustained.”
Right to support by grant or prescription: In respect to the buildings, the right of
support may be acquired by grant or prescription.
ii. Interference with the right to light and air
The right to air and light may be acquired by an easement provided certain
conditions to be fulfilled. If they are peacefully enjoyed, as an easement, as of
right, without interference and for 20 years.
When there is substantial infringement of an easement of light and air, the same is
actionable by an action for damages according to sec.33 of the Indian Easements
Act, which mentions what is substantial infringement of an easement and the
principles are the same as stated in the case of Colls v. Home and Colonial Stores
Ltd10.
9
[1865] 11 HL Cas 642
10
[1904] AC 179, 73 LJ Ch 484, 90 LT 687, 53 WR 30, 20 TLR 475, [1904] UKHL 1
14
Explanation-I : The doing of any act likely to injure the plaintiff by affecting the
evidence of the easement, or by materially diminishing the value of the heritage,
is substantial damage within the meaning of the section.
Explanation-II : Where the easement disturbed is the right to the free passage of
light passing to the openings in a house, no damage is substantial within the
meaning of this section, unless it falls within the first explanation, or interferes
materially with the physical comfort of the plaintiff, or prevents him from
carrying on his accustomed business in the dominant heritage as beneficially as he
had done previous to instituting the suit.
Explanation-III : Where the easement disturbed is the right to the free passage of
air to the opening in a house, damage is substantial within the meaning of this
section if it interferes materially with the physical comfort of the plaintiff.
If a person has enjoyed some light for 20 years, he does not become entitled to get all the light. It
is only when there is any appreciable diminution of light which has been enjoyed for 20 years
that constitutes a right of action and gives to the proprietor of a tenement that had this enjoyment,
a right to prevent his neighbor’s building on his own land.
Injury to comfort or health
Substantial interference with the comfort and convenience in using the premises is actionable as
a nuisance. A mere trifling or fanciful inconvenience is not enough. The rule is De minimis non
curat lex ,that means the law does not take account of very trifling matters.
Disturbance to neighbours throughout the night by the noises of horses in a building which was
converted into a stable was a nuisance.
(1) Damage
15
Unlike trespass, which is actionable per se, actual damage is required to be proved in an action
for nuisance.11 In the case of public nuisance, the plaintiff can bring an action in tort only when
he proves a special damage to him. In private nuisance, although damage is one of the essentials,
the law will often presume it.
Legal Responsibility:
A private nuisance is a tort, that is, a civil wrong. To determine accountability for an alleged
nuisance, a court will examine three factors:
1. The defendant's fault.
2. Whether there has been a substantial interference with the plaintiff's interest, and
3. The reasonableness of the defendant's conduct.
Fault means that the defendant intentionally, negligently, or recklessly interfered with the
plaintiff’s use and enjoyment of the land or that the defendant continued her conduct after
learning of actual harm or substantial risk of future harm to the plaintiff's interest. For example, a
defendant who continues to spray chemicals into the air after learning that they are blowing onto
the plaintiff’s land is deemed to be intending that result. Where it is alleged that a defendant has
violated a statute, proving the elements interference with the plaintiff’s interest must be
substantial. Determining substantial interference in cases where the physical condition
the property is affected will often be fairly straightforward. More challenging are those cases
predicated on personal inconvenience, discomfort, or annoyance. To determine whether
interference is substantial, courts apply the standard of an ordinary member of the community
with normal sensitivity and temperament. A plaintiff cannot, by putting his or her land to an
unusually sensitive use make a nuisance out of the defendant's
conduct that would otherwise be relatively harmless of the statute will establish fault. Substantial
Interference the law is not intended to remedy trifles or redress petty annoyances.
11
https://www.jstor.org/stable/4508859?seq=1#page_scan_tab_contents
16
Reasonableness of Defendant's Conduct
If the interference with the plaintiff's interest is substantial, a determination must then be made
that it is unreasonable for the plaintiff to bear it or to bear it without compensation. This is a
balancing process weighing the respectiveinterests of both parties. The law recognizes that the
activities of others must be accommodated to a certain extent, particularly in matters of
industry, commerce, or trade. The nature and gravity of the harm is balanced against the burden
of preventing the harm and the usefulness of the conduct.
FACTORS THAT LEAD TO PRIVATE NUISANCE:
Whether or not an act is a nuisance depends upon the unique facts and circumstances of your
individual case. Relevant factors include:
 the population and location of your neighborhood
 the prior use of the land (in other words, what it has been used for historically)
 whether or not you have “come to the nuisance” (meaning that you moved to a location
where the alleged nuisance condition has been ongoing for years)
 whether the nuisance is permanent or occasional
 the number of people harmed, and
 the degree of the harm
Private nuisance is essentially a land based tort. In order to bring a claim in private nuisance, a
claimant must have an interest in the land in which he asserts his enjoyment or use has been
unreasonably interfered with.
Case laws:
 Malone v Laskey [1907] 2 KB 141
17
 Dr, Ram Raj Singh v. Babulal

 Sturges v Bridgman
 Health v. Mayor of Brighton
 St. Helen’s Smelting Co. v. Tipping
 Hunter v Canary Wharf:
 Khorasandjian v Bush [1993] QB 727
 bury v Pope (1587) Cro Eliz 118
 Tate & Lyle v GLC [1983] 2 AC 509
 Thomas v National Union of Miners [1985]
 Jones v Portsmouth City Council [2002] EWCA Civ 1723
Dr, Ram Raj Singh v. Babulal12:- the defendant created a brick grinding machine adjoining the
premises of the plaintiff, who was a medical practioner. The brick grinding machine
generated dust, which polluted the atmosphere. The dust entered the consulting chamber
of the plaintiff and caused physical inconvenience to him and patients, and their red
coating on clothes, caused by the dust, could be apparently visible. It was held that a
special to the plaintiff had been proved and a permanent injuction was issued against the
defendant restraining him from running his brick grinding machine there.
Sturges v Bridgman13:- A doctor moved next door to a confectioner, who had produced sweets
for sale in his kitchen for many years. The doctor constructed a small shed for the
purpose of private practice. He built the shed on the boundary. However, the loud noises
from the confectioner's industrial mortars and pestles could be clearly heard, disrupting
his use and enjoyment of his land. He sought an injunction. The facts were described by
the Siger LJ in the Court of Appeal as follows,
“ The Defendant in this case is the occupier, for the purpose of his business as a confectioner,
of a house in Wigmore Street. In the rear of the house is a kitchen, and in that
kitchen there are now, and have been for over twenty years, two large mortars in
12
Supra 2.
13
[1879] 11 Ch D 852
18
which the meat and other materials of the confectionery are pounded. The Plaintiff,
who is a physician, is the occupier of a house in Wimpole Street, which until
recently had a garden at the rear, the wall of which garden was a party-wall between
the Plaintiff’s and the Defendant’s premises, and formed the back wall of the
Defendant’s kitchen. The Plaintiff has, however, recently built upon the site of the
garden a consulting-room, one of the side walls of which is the wall just described. It
has been proved that in the case of the mortars, before and at the time of action
brought, a noise was caused which seriously inconvenienced the Plaintiff in the use
of his consulting-room, and which, unless the Defendant had acquired a right to
impose the inconvenience, would constitute an actionable nuisance. The Defendant
contends that he had acquired the right, either at common Law or under the
Prescription Act, by uninterrupted user for more than twenty years.
The Court of Appeal held that the fact the doctor had "come to the nuisance", by which the
Judge meant moved to an area where the nuisance had been operating for years
without harming anyone, was no defence. The doctor's legal right to have the
nuisance stopped was not lessened by the confectioner's longstanding practice.
Health v. Mayor of Brighton,14 the court refused to grant injunction in favour of the
incumbent and trustees of a church to restrain “a Buzzing noise” from the
defendant’s power –station. It was found in the case that the noise did not cause
annoyance to any other person but the incumbent, nor was the noise such as could
distract the attention of ordinary persons attending the church.
In St. Helen’s Smelting Co. v. Tipping,15 fumes from the defendant company’s works
damaged being an injury to property, it was held that the defendants were liable . the
plea that locality was devoted to works of that kind was unsuccessful.
14
(1908) 98 LT 718, (1908) 72 JP 225, (1908) 24 TLR 414
15
Supra 9
19
Defences to private nuisance
There are certain special defence which can be used by the defendant while defending his
case. There are two main defences which are available:
Statutory Authority
This defence is used by statutory authorities when they are sued for creating nuisance.
16
This defence is even valid when a reasonable man is disturbed by unreasonable
interference. For example if a railway line work is going on and people residing near that
area are greatly disturbed by the noise they cannot claim for nuisance. Same is the case for
people residing near a power station.
Prescriptive right or acquired right
This simply means that right acquired due to long usage. If the plaintiff has not objected to
any unreasonable interference for a very long period then the defendant gets this right. The
time period is 20 years. For example if your neighbour gives music lessons at 5 in the
morning and you do not object to it for 20 years then from the 21st year he gets this right to
continue this practice.
Apart from these defences the court also orders for abatement of nuisance which is
another important remedy the court provides apart from damages. However there are certain
points which cannot be used as defence. These points are:
(I) Defendant cannot say that the nuisance is caused with assistance from others. Thus
16
https://www.clatapult.com/general-defences-in-tort-statutory-authority/
20
plaintiff cannot claim that other people assisted him to cause nuisance.
(II) Defendant cannot claim that his act was done for public good. You cannot claim that
giving music lessons at four in the morning is for public good.
(III) This is the most crucial thing which the defendant cannot use as a defence. Plaintiff
put himself in a position of nuisance. The simplest example is if a person buys a new
house and neighbour cause nuisance by making noise then the neighbour cannot claim that
plaintiff put himself in a position of nuisance by buying house besides him.
(IV) Defendant cannot claim that Reasonable Care was taken him. The simplest point is
that if reasonable care was taken then nuisance would not have been committed.
The distinction between public and private nuisance
In some instances, the same set of facts can produce liability in both kinds of nuisance, although
the two types of nuisance are very much distinct. Private nuisance is concerned with protecting
the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his
land. The parties to an action in private nuisance are generally neighbors in the popular sense of
the word and the courts undertake a balancing exercise between the competing rights of land
owner to use his land as he chooses and the right of the neighbor not to have his use or
enjoyment of land interfered with. Public nuisance is a crime but becomes actionable in tort law
if the claimant suffers 'particular damage' over and above the damage suffered by the public
generally.
The major difference between the two is the scope of harm that is done and the number of people
to whom the harm is done17.
A private nuisance is one that is felt by a single person or perhaps a single family. By contrast, a
public nuisance is one whose impact is felt by a large number of people.
17
https://www.srdlawnotes.com/2017/03/distinction-difference-between-public.html
21
Some possible examples of private nuisance:
 Your dog using my yard as its toilet

 My tree dropping rotten fruit in your yard
Some possible examples of public nuisance:
 A bar playing loud music late at night near to private homes

 A business that dumps its trash in the empty lot out back, attracting rodents and flies and
endangering public health
 A run-down motel that is used mainly by drug dealers and prostitutes
In general, the remedy for private nuisance is a suit brought by the offended private citizen. The
remedy for a public nuisance is sought by the affected government.
Public nuisance affects the public while a private nuisance is one that affects an individual or a
family. For instance, if a farmer failed to properly disposed of a significant amount of manure,
or atleast cover up its smells, and neighbors and an adjacent neighborhood could not avoid the
odors, it would constitute a public nuisance. If there was one family immediately adjacent to that
property, yet it could be smelled beyond that immediate family it would constitute a private
nuisance since it is only affecting the family adjacent to that family. Since there are not
neighbors around it would then be considered a private nuisance.
On the other hand, public nuisance constitutes an interference with a right common to a
community or a significant segment thereof. Often, public nuisance is viewed as an aspect of
criminal law, though in the occasional case, it can be dealt with in tortious terms. While a private
nuisance claim can be based on the claim of one or several individuals, a public nuisance can
include any number of plaintiffs. Thus, throughout this article, the term “nuisance” will indicate
private nuisance, unless otherwise specified.
Over-all, the courts prefer to award money damages in order to a resolve a dispute. This is due to
the fact that, so long as both parties are using their land in a lawful manner, the courts are
reluctant to curtail or halt this use and enjoyment. Still, recognizing the infeasibility of this
22
solution in many such conflicts, the remedy of injunction is frequently the sole feasible option.
An injunction is granted by a court when it finds it appropriate to require a defendant to do, or
refrain from engaging in an activity which interferes, to a substantial degree, with a plaintiff’s
reasonable use and enjoyment of his land.
There are two types of injunction, temporary and permanent. A court might set forth an order
temporarily forcing the defendant in a nuisance claim from pursuing the activity in question.
This might be done in order to quell the adversarial turbulence until a more concrete decision is
reached. Ideally, this can be done via an out of court settlement between the two parties, perhaps
with the aid of an arbitrator or mediator. If not, the claim will need to be re-evaluated by a higher
court. Thus, a temporary injunction may be seen as a bandage or tourniquet on a hemorrhage, a
measure used until more effective measures can be implemented.
23
Conclusion
The distinction between public and private nuisance is so important for a number of reasons.
Most importantly, it determines whether or not you have standing (i.e., the right to sue).
An individual does not have standing to sue for a public nuisance, unless an exception applies.
The principal exception is if you are harmed in a manner that is different in kind from the harm
suffered by the public at large (i.e., you have a special injury).
Furthermore, a private nuisance is a civil wrong, meaning that damages are the appropriate
remedy for those who have been harmed. On the other hand, a public nuisance is sometimes
classified as a criminal offense, and it may be remedied by civil or criminal penalties, but it
usually takes a city attorney or another public official (as opposed to a private citizen) to initiate
an action over a public nuisance.
24
Bibliography
Books referred:
Law of Tort, R. K. Bangia
Tort, Winfield and Jolowicz, 18th edition, W.V.H. Rogeres
Web source:
http://legalcontent.in/tort-of-law-in-india/203/
http://nuisances.uslegal.com/types-of-nuisances/private-nuisances/
ttp://www.prepsure.com/news/upsc-civil-services-main-exam-2013-question-papers-...
http://notes-law.blogspot.com/2008/08/law-on-torts-part-2.html
http://en.wikipedia.org/wiki/Nuisance
http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics/discuss-...
http://www.indiankanoon.com/doc/1294636/
manupatra.com/roundup/326/Articles/Plea%20bargaini...
www.goforthelaw.com/articles/fromlawstu/article73....
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DISTINCTION BETWEEN PUBLIC NUISANCE AND

SUBMITTED BY: SUBMITTED TO:

Akshita Thapa Sneha Sharma

B.A. LLB Hons. Faculty of Torts

Roll. Number: 2106 Chanakya National Law University

CHANAKYA NATIONAL LAW UNIVERSITY,

DECLARATION BY THE STUDENT

1. Public or common nuisance

2. Private nuisance, or tort of nuisance .

What is meant by nuisance?

When public nuisance converted into private nuisance?

Public nuisance cases

Dr. Ram Raj Singh v. Babulal

Dr. Ram Raj Singh v. Babulal4

Rose v Miles5 [1815],

Campbell v. Paddington Corporation [1911], 6

such as erecting a fence, to prevent foreseeable injury to children. Trespass is sometimes

1. The nature of the locality/neighbourhood

Interference with the use or enjoyment of land

Interference may cause either:

Injury to the property

i. Nuisance to incorporeal property

ii. Interference with the right to light and air

Injury to comfort or health

Reasonableness of Defendant's Conduct

FACTORS THAT LEAD TO PRIVATE NUISANCE:

 the population and location of your neighborhood

 whether the nuisance is permanent or occasional

 the number of people harmed, and

 the degree of the harm

 Malone v Laskey [1907] 2 KB 141

 Dr, Ram Raj Singh v. Babulal

Defences to private nuisance

case. There are two main defences which are available:

people residing near a power station.

Prescriptive right or acquired right

The distinction between public and private nuisance

Some possible examples of private nuisance:

 Your dog using my yard as its toilet

Some possible examples of public nuisance:

 A bar playing loud music late at night near to private homes

Law of Tort, R. K. Bangia

Tort, Winfield and Jolowicz, 18th edition, W.V.H. Rogeres

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