DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P.,

INDIA

PROJECT TITLE

Difference between Private Nuisance and Public Nuisance

SUBJECT

Law of torts

NAME OF THE FACULTY

Dr. B.V.S Sunitha

Name of the Candidate: Aviral Agnihotri

Roll No. 21LLB013

Semester:1
 TABLE OF CONTENTS

1) Acknowledgement
2) Abstract
3) Synopsis
4) Chapters and content
5) Conclusion
6) Bibliography
 ACKNOWLEDGEMENT

I would like to express my sincere respect towards my faculty of Law of Torts, Dr. B.V.S
Sunitha, for her constant help and guidance throughout the project. without her valuable insight
this project would be incomplete. This project is the first Stepping Stone For my many coming
researches and this would be beneficial to me in my future works.

I would like to express my gratitude to the academic department and library of DAMODARAM
SANJIVAYYA NATIONAL LAW UNIVERSITY for their ongoing assistance and
availability of resources and books, without their assistance it would not be possible to complete
in the deadline.

And many peers, friends and family, whom I thank from the bottom of my heart.
 ABSTRACT

In this project, I am going to research on the topic Difference between Private Nuisance
and Public Nuisance.
Private Nuisance is “unreasonably or unlawfully interference with others' use and
enjoyment of life or property. The harm caused must be significant and of a kind that
would affect an average person or property in the same community.”
Public Nuisance is “unreasonable, unwarranted, or unlawful interference with a right
common to the general public.”

In this project, I am going to discuss the difference between these two types of nuisances
and the major cases dealt with the difference between private nuisance and public
nuisance.
 INTRODUCTION

The nuisance concept has frequently been alleged to apply a sort of strict liability analogous to
the Rylands v. Fletcher doctrine and the associated idea, established in the Restatement of Torts,
of absolute culpability for damage resulting from ultra-hazardous activities.
Thus, it is stated in Harper and James' remarkable treatise:
“It appears that liability for nuisance escaped the transition to fault principles which
characterized most areas of tort law in the nineteenth century, no doubt because of its close
relationship to the principles of the law of property. "Nuisance" has remained an isolated island
of liability without fault and courts have resorted to "nuisance" terminology to impose liability
when prompted by policy considerations emerging from the idea of the inviolability of private
property rights, enterprises involving high risks, and the notion that expanding industry with its
high profits should make good for loss caused to innocent bystanders in the role of nearby
property owners.”1

1
1 HARPER & JAMES, TORTS? 1.24, at 69 (1956)
 SYNOPSIS

OBJECTIVE:

 To state the difference between private nuisance and public nuisance

 To deal with major cases related to the difference
 To understand the tort provisions related to private nuisance and public nuisance

SCOPE OF THE STUDY:

The study shall cover the history of private nuisance and public nuisance, the difference between
private nuisance and public nuisance and major cases related to it.

SIGNIFICANCE OF THE STUDY:

This study shall help us to understand the difference between private nuisance and public
nuisance, how it affects the society and the tort provisions related to nuisance.

LITERATURE REVIEW:
The researcher has gone through various online sources such as;
Hein Online, Manupatra etc.
And has also referred to books like Black Law's Dictionary.
Various research papers and journal articles were also reviewed and read to collect relevant
information and data for this project

RESEACRH METHODOLOGY:
The research methodology adopted for the purpose of this paper is the doctrinal method of
research. The various library and internet facilities available to mark the difference between private
nuisance and public nuisance have been utilized for this purpose, which includes many secondary
resources as cited in the bibliography section.

MODE OF CITATION:

OSCOLA 4th edition type citation is used

 PUBLIC NUISANCE

It's maybe surprising that the law of private annoyance is still alive and well in this era of
regulation. If my neighbour is bothering me, it is usually faster and easier to resolve our conflict
through other ways. Why, therefore, hasn't the nuisance law been repealed? Furthermore, despite
the fact that the law of private nuisance has lost its social significance, major advances have
occurred.

A person is charged with public nuisance when he commits any illegal act or omission that
causes a legal injury or annoyance to a person or general public who live in the neighborhood
and may have an occasion to use any public right. According to section 268 of the Indian Penal
Code, the person must have acted in the manner so as to cause the injury to a person or public in
general. There are three basic requisites in order to define that the act is a public nuisance. First,
the question should be answered that whether the number of people affected by the act done by
the accused sufficient enough to constitute a public nuisance. Secondly, whether the character of
the neighbor is within the boundaries of the definition of public nuisance a given in the Indian
Penal Code. And third, there is no requirement that the act done by the accused itself is unlawful,
if it annoys the neighborhood, it is a public nuisance. When an act is a public nuisance, the fact
that it is entirely lawful in and of itself, and that it is done on a man's own ground, in a
convenient location, and in a reasonable manner, is no defence, because the illegality consists in
exploiting one's own property to hurt the public.

For e.g., when a company negligently blasts off stone or earth in a mine or in a quarry and the
debris falls off to the nearby village destroying property, it will amount to public nuisance.
Suppose the debris fall on nearby road and there is no damage to property or annoyance to the
public due to it, it will not amount to public negligence. When a person is charged with causing
an undeniable public nuisance, he or she cannot claim that a number of other people are causing
public nuisances as severe as, or worse than, his own, and that his contribution to the general
irritation is only an insignificant addition.

Almost all public nuisance prosecutions in recent years appear to have occurred in one of two
scenarios: first, where the defendant's behavior amounted to a statutory offence, typically
punishable by a small fine, and the prosecutor wanted a bigger or extra stick to beat him with,
and second, where the defendant's behavior was not obviously criminal at all and the prosecutor
could think of nothing else to charge him with.

It is legal for any individual to abate a public nuisance to a roadway, so far as it is required to
permit him to exercise his right of way or right of access thereto, as stated by S Almond2.

The threat of onerous abatement orders and damage judgments has been raised in public
nuisance cases against fossil fuel firms, pharmaceuticals companies, lead paint producers, and
other sectors. While courts have often dismissed these industry-oriented public nuisance claims

2
Ratanlal and Dhirajlal’s Indian Penal Code (33e,2016)
on the merits, in climate change lawsuits, federal district courts have relied on avoidance
doctrines such as jurisdictional defences and justiciability doctrines to dismiss cases and avoid
going to the merits.3

Public rights that were susceptible to public nuisance under common law included rights to
unimpeded roadways and rivers, as well as rights to clean air and water. While public nuisances
have been observed in a variety of situations, environmental issues such as dust, smoke,
chemical exposure, and smells are among the most well-known public nuisances.4 Certain illegal
activities, such as opium dens or brothels, may be described as a public nuisance by the
authorities. This may be interpreted as meaning that legal actions, at least in terms of categories,
cannot be considered a public nuisance. This way of thinking has led some defendants to argue
that they will not be prosecuted under the public nuisance law for the normal consequences of
doing legal work, especially when the work is already under state control.

In the case of K Ramakrishnan vs. Kerala State, it was Smoking tobacco in any sort of public
location, according to the argument, turns non-smokers into "passive smokers" and thus creates
public annoyance, as defined under section 268 of the IPC. As a result, the Kerala high court has
been petitioned to declare tobacco smoking not only illegal because it creates public disturbance,
but also unconstitutional. The supreme court ruled that tobacco smoking in public areas, whether
in the form of cigarettes, cigars, or beedis, falls within the definition of public nuisance.
The supreme court determined cigarette smoking to be illegal, citing the freedom to life given by
Article 21 of the Constitution.5

The new generation of potential pollution problems that can be applied to social norms is
extremely difficult. Just as regulators struggle to control the last 1% of pollutants, plaintiffs may
find it difficult to extend and extend irrational ideas to society in order to address the subtle and
more complex aspects of today's pollution problem. Because the current concept of products
liability doctrines already controls the creation and marketing of products, manufacturers argue
that incorporating public outrage on this domain will only lead to instability. As a result, they
have advised the courts to refrain from expanding the definition of public nuisance beyond its
original meaning. Some judges have been convinced of this reason for dismissing cases of public
misconduct against product manufacturers. The difficulty with the public nuisance hypothesis is
the inability of the product manufacturer to eliminate the alleged nuisance. Manufacturers of
products argue that they should not be held accountable for the actions of others under the
system of public nuisance unless they truly control the people who caused the disturbance. They
argue that if the purpose of the act of public nuisance is to stop harmful conduct, it cannot be
achieved by attacking the producer or seller who has lost control of the property in question.

3
Albert C Lin, 'Dodging Public Nuisance' (2020) 11 UC Irvine L Rev 489

4
State v. Lead Indus. Ass'n (RI. 2008)

5
AIR 1999 KER 385
In Ram Raj Singh vs Babulal6, the plaintiff was a doctor and had a clinic set up next to the
defendant place. The defendant had a brick grinding machine set up in that place. The machine
created a lot of dust which in turn polluted the atmosphere around and also entered the plaintiff’s
clinic. The plaintiff and the patients of the clinic had a lot of inconvenience due to the dust and a
red color coating was formed on the clothes due to the pollution caused by the defendant’s
machine. As a result, a permanent injunction was issued against the owner of the grinding
machine to stop its work there and the plaintiff was granted special damages.

In the case of Rose vs Miles7, the defendant had anchored his boat illegally across a public
navigable neck. Plaintiff's barges were unable to pass because of this, and plaintiff was forced to
incur costs in unloading the goods and transferring it to the same location. The plaintiff should
be awarded extraordinary damages, it was decided.

In the case of Winterbottom v. Lord Derby8, the plaintiff had to take a different route or
sometimes had to remove the obstruction as the defendant had blocked the public footpath. The
court held that the plaintiff will not be granted special damages in the purview of public nuisance
as he had not incurred damages more than the public.9

Some of the acts that can cause public nuisance are – “firework in streets, storing explosives,
digging ditches on roads, illegal liquor establishments, prostitution houses, harboring vicious
dogs, unlicensed medical practitioners, polluting the water stream, unlicensed prize fights and
obstructing highways”10

6
AIR 1982 All. 285
7
1815 4 M&S. 101
8
1857 L.R. 2 exch. 316
9
https://www.lawnn.com/public-nuisance-private-nuisance/
10
B&B Associates, Public Nuisance (2017) <https://bnblegal.com/article/public-nuisance/>
 PRIVATE NUISANCE

Private nuisance is an environmental tort, according to textbooks. Because it has lost any concept
of what it stands for, nuisance is both attacked and burdened. Before it can devote its focus to
world protection, it must rediscover its own convictions.

There are three major issues to address. The first is that it is defiant. Private annoyance must be
distinguished not only from public nuisance and statutory nuisance, but also from interferences
with servitudes, such as the blockage of a private right of way or the blocking of a right to light.
Regardless matter how appealing broad occasional pronouncements could seem, authorities from
these sectors should not be allowed to intrude into any consideration of private disturbance.
The second issue is one of structure. Costs, causation, the burden of proof, and the courts' locus
standi rules all provide challenges to potential litigants. Of course, these challenges occur
throughout the law, but they may be more significant here, since the defendant is frequently a
large corporation and the claimed contamination is typically the outcome of complex scientific
procedures.
As previously stated, the definition of "nuisance" under the statutory framework is, of course,
based on its common law equivalent; the substance of common law nuisance is of essential
importance in this regard as well. The third difficulty with the tort is its theological component.

We know that trespass involves direct interferences with a neighbor's land; such incursions will
not be discussed further—this essay is only concerned with the issue of indirect harm.
The link between annoyance and carelessness becomes significant in this setting. As things are,
there is no clear distinction made between physical and non-physical harm to a neighbor's land:
both may be labelled as a private nuisance, and frequently are.

All non-trespassory disagreement between neighbours is still regulated by private nuisance, but
at the cost of intellectual consistency and theoretical soundness. The alternative is to see these
decisions as evidence of a steady shift away from nuisance and toward a responsibility based on
carelessness, in practice if not necessarily in verbal form, in the field of indirect physical
damage.

In Goldman v. Hargrave, Lord Wilberforce may have had this conundrum in mind when he said
“the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in
some of which negligence plays no part, in others of which it is decisive.”11

11
His Lordship was summarising the effect of dicta in Overseas Tankships (U.K.) Limited v.
Miller Steamship Company Pty. Limited [The Wagonmound (No. 2)] [1967] 1 A.C. 617
There is plenty of precedent to show that a private action for nuisance air pollution exists where
it is launched by a single plaintiff or a small and well-defined class against a single polluter and
the damages are serious and palpable. The likelihood of victory in an action for air pollution as a
private nuisance lowers as the class of plaintiffs grows bigger and less clearly defined, as the
number of defendants grows, and as the nature and amount of the plaintiffs' harm becomes less
obvious.

A private nuisance is an unreasonably intrusion on a person's right to use and enjoy his land,
which implies that only someone who has an interest in the land can suit. A "private nuisance" is
a tort that gives birth to a private right of action in favor of anybody who suffers harm as a result
of the nuisance's upkeep. A typical private nuisance lawsuit occurs when a landowner thinks he
is being deprived of the proper use and pleasure of his land due to the manner a neighboring
landowner uses his land. A specific example of a conflict is when a factory releases a caustic
chemical that damages or destroys a neighbor's crops or makes it impossible for a neighbor to
live in his home.

The law of private nuisance has tended to grant stronger protection to property interests than to
rights based on human comfort or well-being as it has evolved over time. In this regard, the law
of private nuisance has been appropriately described as the process of creating a boundary
between an owner's right to use his property in the manner he chooses and that same right in
another.12

12
4 Roberts v. C. F. Adams & Sons, 199 Okla. P. 2d 634, 637 (1947)
 DIFFERENCE BETWEEN PRIVATE NUISANCE AND PUBLIC
NUISANCE

Professor Newark bemoaned the fact that "the topic as typically taught includes a mass of
information that is so recalcitrant to description and analysis that it immediately exposes its
mongrel roots" forty years ago. ' Erie C.J.'s "truest aphorism in the books" was that a nuisance is
"immersed in indefinite doubt," as he famously observed in response to the query, "What is a
nuisance?", that it was “immersed in undefined uncertainty”. There has been little change, since
then. Despite overwhelming evidence, much of it gathered in Newark's paper, demonstrating
they have little in common save the coincidence of sharing the same word, public and private
nuisance continue to coexist in textbooks, universities, and legal reports.

For example, in some of the country's most industrialized areas, nearly unregulated dumping of
industrial waste straight into the nation's rivers and oceans has occurred for decades. Until
recently, however, no cause of action for nuisance, private or public, existed as long as property
was not immediately harmed or destroyed, or the water was not deemed unsuitable for riparian
use. This was due to the fact that the public and private interest in clean water for its own sake
was not valued and hence could not be protected. An action for nuisance was typically
maintainable if the water contamination affected a recognized public or private interest, such as
an individual's or the public's interest in fishing. 13

Recognizing that the same conduct can cause both a private and a public nuisance is essential to
a good understanding of nuisance law. In the case of the above-mentioned contamination of a
river that kills fish, such pollution would be a private nuisance where the river flowed through
private property and so interfered with its use, and a public nuisance where the public right to
fish was exercised.

13
15 State ex rei. Wear v. Springfield Gas & Elee. Co., 204 S. W. 942 (Mo. Ct. App. 1918).
However, as absurd as it may appear, the early instances establishing the nuisance law refused to
allow an individual to bring a private right of action for damages or an injunction if the
defendant's behavior constituted also a public nuisance.

Although many private nuisance actions have failed in the past because the class of persons
affected became so large that it became the "public," these cases erred in failing to recognise the
difference between an interference with a public interest and an interference with the private
interests of so many individuals that the class became the "public," as Prosser points out.

The defendant, on the other hand, maintained that the creamery constituted a public nuisance,
and that the plaintiff could not succeed because he could not prove losses that were distinct from
those suffered by the rest of the community.

However, the court states: “There is no doubt but that there are many nuisances which may
occasion an injury to an individual for which an action will not lie by him in his private capacity,
unless he can show special damage to his person or property differing in kind and degree from
that which is sustained by other persons who are subjected to similar injury. Among such may be
mentioned the invasion of a common and public right, which everyone may enjoy, such as the
use of a highway, or canal, or public landing-place. But this class of nuisances is confined in
most cases to where there has been an invasion of a right which is common to every person in
the community, and not to where the wrong has been done to private property, or the private
rights of individuals, although many individuals may have been injured in the same manner and
by the same means .... Because the nuisance affects a great number of persons in the same way, it
cannot conclusively be said that it is a public nuisance and nothing more. The fact that a nuisance
is public does not deprive the individual of his action in cases where, as to him, it is private and
obstructs the free use and enjoyment of his private property. . .. * * * Nor would such a doctrine
be consistent with sound principle. Carried out practically, it would deprive persons of all redress
for injury to proper- ty or health, or for personal annoyance and discomfort, in all cases where
the nuisance was so general and extensive as to be a legitimate subject of a public prosecution;
so that, in effect, a wrongdoer would escape all liability to make indemnity for private injuries by
carrying on an offensive trade or occupation in such place and manner as to cause injury and
annoyance to a sufficient number of persons to create a common nuisance … “

In contrast to private nuisance, public nuisance is a violation committed against the general
public and actionable by the Court as the people's representative. An individual, on the other
hand, can launch a public nuisance case if he can show that he incurred harm in addition to other
members of the public as a result of the nuisance.
 CONCLUSION

There has been a lot of similarities and differences in the past related to public and private
nuisance and though the courts have tried to explain, it still remains unresolved to an extent.

I hope that by explaining Public Nuisance and Private Nuisance individually then telling the
difference between the, it must have cleared doubts and helped the reader

Thankyou

Aviral Agnihotri
 BIBLIOGRAPHY

 Keeton, Page. “Trespass, Nuisance, and Strict Liability.” Columbia Law Review, vol. 59,
no. 3, Columbia Law Review Association, Inc., 1959, pp. 457–75,
https://doi.org/10.2307/1120124.
 H Nestadt, 'Warranty of Representation' (1957) 74 S African LJ 339
 Ratanlal and Dhirajlal, Law of Torts