Law of Torts

Chapter 20
Nuisance

CHAPTER 20

NUISANCE

SYNOPSIS
20.1 General ........................................... 683 20.5 Distinction between Injury to

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20.2 Public, General or Common Property and Physical Discomfort ... 691
Nuisance......................................... 684 20.6 Injury to Property ........................... 693
20.2.1 Ringing of bells .....................686 20.6.1 Trade ................................... 693
20.2.2 Smoke and noise of cotton 20.6.2 Sewers, Drains, etc. ............... 694
mills ......................................686 20.6.3 Trees .................................... 694
20.2.3 Obstruction of view ..............686 20.6.4 Nuisance due to Smoke ........ 695
20.2.4 Falling of glass from window .686 20.7 Physical Discomfort ........................ 695
20.2.5 Obstruction by formation of 20.8 Who can Sue for Nuisance? ............. 700
queue ....................................687 20.9 Who is Liable for Nuisance? ............ 701
20.2.6 Dust and vibration from 20.10 Remedies ......................................... 704
quarry ...................................687 20.10.1 Notice .................................. 705
20.3 Private Nuisance ............................. 687 20.10.2 Tree overhanging another
20.4 Highways........................................ 689 person’s boundary................. 705
20.4.1 Leaving unlighted vehicle on 20.10.3 Damages............................... 706
road at night .........................691 20.10.4 Injunction ............................ 706
20.4.2 Injury caused by subsistence 20.11 Burden of Proof .............................. 708
of highway ............................691

20.1 General
Nuisance has been defined to be anything done to the hurt or annoyance of the lands,
tenements or hereditaments of another, and not amounting to a trespass. 1 The word
“nuisance” is derived from the French word nuire, to do hurt, or to annoy. Blackstone
describes nuisance (nocumentum) as something that “worketh hurt, inconvenience, or
damage.”
A nuisance may be caused by negligence, and there may be cases in which the same act
or omission will support an action of either kind, but, generally speaking, these two
classes of actions are distinct, and the evidence necessary to support them is different. 2
Nuisance is no branch of the law of negligence, and it is no defence that all reasonable

1. Stephen, iii, 499.

2. Cunard v Antifyre Ltd, (1933) 1 KB 551, 558 : 148 LT 287 : 49 TLR 183.

683
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care to prevent it is taken. 3 In contrast to tort of trespass or negligence, tort of private

nuisance is actionable only on proof of damage and is not actionable per se. But apart
from physical damage to property, even undue interference with use or enjoyment of
land, such as, interference by noise, smell, smoke, vibrations or even overlooking 4 on the
land will constitute nuisance 5.
Nuisance can be continuing in nature. It is difficult to set out in precise terms as to
what will constitute continuing nuisance. The UK Supreme Court in Jalla v Shell
International and Trading Co Ltd, 6 has held in general terms that a continuing nuisance
is one where on account of the defendant undue interference with claimant’s land is
caused day after day or on another regular basis which is similar on each occasion. Cause
of action for such nuisance accrues afresh on a continuing basis.
Where undertakers act under a mandatory obligation (eg statutory obligation)

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whether or not there is a saving clause not exempting them from liability in nuisance,
there is no liability in nuisance if what has been done is that which was expressly
required to be done, or was reasonably incidental thereto. 7 There is a distinction in this
context between statutory obligation or duty and statutory power which is permissive in
nature. In case of the former, there is immunity from an action based on nuisance but in
case of the latter, there is no immunity and power must be exercised in strict conformity
with private rights; but even in the former case there will be no immunity if the power is
negligently exercised.8 It is also obvious that there will be no immunity in either of the
cases when the action taken is ultra vires the statute. 9
Nuisance is of two kinds: (a) Public, general, or common, and (b) Private.

20.2 Public, General or Common Nuisance

A person is guilty of a 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 to
the people in general who dwell, or occupy property, in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right. [See, Indian Penal Code, section 268.]
Public nuisance is an act affecting the public at large, or some considerable portion of
it; and it must interfere with rights which members of the community might otherwise
enjoy. Acts which seriously interfere with the health, safety, comfort or convenience of
the public generally or which tend to degrade public morals have always been considered

3. Rapier v London Ramways Co, (1893) 2 Ch 588, 599 : 69 LT 361 : 63 LJ Ch 36; Newsome v Darton
Urban District Council, (1938) 1 All ER 79, 81.
4. Fearn v Board of Trustees of the Tate Gallery, [2023] UKSC 4.
5. Jalla v Shell International Trading and Shipping Co Ltd, [2023] UKSC 16; See also Clerk & Lindsell on
Tort, Para 19-02
6. Jalla v Shell International and Trading Co Ltd, [2023] UKSC 16.
7. Dunne v North Western Gas Board, (1964) 2 WLR 164, 181 : (1963) 3 All ER 916.
8. Allen v Gulf Oil Refining Ltd, (1981) 1 All ER 353 (HL), p 356 : (1980) QB 156; Department of
Transport v North West Water Authority, (1983) 3 All ER 273 (HL), pp. 275, 276 : (1984) AC 336 :
(1983) 3 WLR 707. See further text and footnotes 116, p 107, Chapter 5.
9. Home Office v Dorset Yacht Co Ltd, (1970) AC 1004 (HL) pp 1064-1071: (1970) 2 WLR 1140: 114 SJ
375: (1970) 2 All ER 294.
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public nuisance, eg carrying on trades which cause offensive smells, 10 or intolerable

noises, 11 keeping an inflammable substance like gunpowder in large quantities; 12
drawing water in a can from a filthy source. 13 They are dealt with by, or in the name of,
the State.
Public nuisance can only be the subject of one action; otherwise a party might be
ruined by a million suits. It depends in a great measure upon the number of houses and
the concourse of people in the vicinity. An indictment will fail if the nuisance
complained of only affects one or a few individuals. Again, no length of time can legalize
a public nuisance, though it may supply a defence to an action by a private person. 14
Public nuisance does not create a civil cause of action for any person. In order that an
individual may have a private right of action in respect of a public nuisance—
(i) He must show a particular injury to himself beyond that which is suffered by

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the rest of public. If the alleged nuisance is, for instance, the obstruction of a
highway, it is not enough for him to show that he suffers the same
inconvenience in the use of the highway as other people do. 15 He must show
that he has suffered some damage more than what the general body of the
public had to suffer. 16
(ii) Such injury must be direct, and not a mere consequential injury; as, where one
way is obstructed, but another is left open. In such a case the private and
particular injury is not sufficiently direct to give a cause of action.
(iii) The injury must be shown to be of a substantial character, not fleeting or
evanescent. 17
Thus, in order to entitle a person to maintain an action for damage caused by that
which is a public nuisance, the damage must be particular, direct and substantial. 18 The
object of this rule is to avoid multiplicity of litigation.
In India under section 91 of the Code of Civil Procedure, in the case of a public
nuisance the Advocate General, or two or more persons having obtained the consent in

10. Malton Board of Health v Malton Manure Co., (1879) 4 Ex D 302.

11. Lambton v Mellish, (1894) 3 Ch 163.
12. Lister’s Case, (1856) 1 D & B 118.
13. Att-Genl v Proprietors of the Bradford Canal, (1866) LR 2 Eq 71.
14. Weld v Hornby, (1806) 7 East 195. See section 268 of the Indian Penal Code as to nuisance punishable
as a crime.
15. Ireson v Moore, (1699) 1 Ld Raym 486; Hubert v Groves, (1794) 1 Esp 148; Winterbottom v Lord Derby,
(1867) LR 2 Ex 316; Vanderpant v Mayfair Hotel Co, (1930) 1 Ch 138 : 142 LT 198 : 99 LJ Ch 84.
Frontagers on a road not repairable by the inhabitants at large, have such an interest, over and beyond
that of the general public, in preventing damage to the road, as to entitle them to sue for an injunction :
Medcalf v R. Strawbridge, Ld., (1937) 2 KB 102; Bhawan Singh v Narottam Singh, (1909) ILR 31 All
444; Ram Chandra v Joti Prasad, (1910) ILR 33 All 287; Ganga Din v Jagat, (1914) 12 ALJR 1026;
Ramghulam Khatik v Ramkhelawan Ram, (1936) ILR 16 Pat 190. In this case it was also held that the
right of the resident of a village to sue for removal of an obstruction to a village path or to a well does
not amount to a public nuisance and a suit was maintainable without proving special damage. GMM
Pfaudler Ltd v TATA AIG Life Insurance Company Limited & Others (2011) 1 Bom CR 670 : (2010) 7
Mah LJ 541 : (2010) 6 AIR Bom R 131.
16. The Municipal Board, Lucknow v Mussammat Ram Dei, ILR (1940) 16 Luck 173.
17. Benjamin v Storr, (1874) LR 9 CP 400, 407; Sadu v Suka, (1902) 5 Bom LR 116.
18. Benjamin v Storr, supra.
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writing of the Advocate General, may institute a suit though no special damage has been
caused, for a declaration and injunction or for such other relief as may be appropriate in
the circumstances of the case. 19

20.2.1 Ringing of bells

The plaintiff resided in a house next to a Roman Catholic Chapel of which the
defendant was the priest and the chapel bell was rung at all hours of the day and night.
It was held that the ringing was a public nuisance and the plaintiff was held entitled to
an injunction. 20

20.2.2 Smoke and noise of cotton mills

The plaintiffs were owners of a building containing a large number of rooms and had

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derived a considerable income by letting them. The defendants were owners of an
adjacent cotton mill which was erected after the occupation by the plaintiffs of their
building. Owing to the noise and smoke of the mill certain rooms in the building
remained unlet. In an action against the defendants, the plaintiffs obtained
compensation and an injunction prohibiting any increase of smoke, cotton fluff, or
noise of machinery, beyond what subsisted at the time of the decree. 21

20.2.3 Obstruction of view

The plaintiff was in possession of a house in London from the windows of which there
was an uninterrupted view of part of a certain main thoroughfare along which it was
announced that the funeral procession of King Edward VII was to pass. One G agreed to
take and pay for seats on the first and second floors of the house in order to see the
procession. The defendants caused a stand to be erected across a certain highway to
enable the members of the Council and their friends to view the procession. This stand
was a public nuisance, and it obstructed the view of the main thoroughfare from the
windows of the first floor of the plaintiff’s house. G, when he saw the stand in process of
erection, asked to be released from his contract as to the seats on the first floor, and the
plaintiff, thinking it would be unfair to hold him bound, released him. Several other
persons refrained from taking seats owing to the obstruction. In an action by the
plaintiff to recover damages for the wrongful interference with the use and enjoyment of
her house and the special loss she had sustained, it was held that she was entitled to
recover as damages the profit which but for the defendants’ act she might have made by
letting seats. 22

20.2.4 Falling of glass from window

The plaintiff, while walking on the highway was injured on a Tuesday by glass
falling from a window in an unoccupied house belonging to the defendant, the
window having been broken in an air raid during the previous Friday night. Owing

19. See Advocate-General v Haji Ismail Hasham, (1909) 12 Bom LR 274.

20. Soltau v De Held, (1851) 2 Sim NS 133.
21. The Land Mortgage Bank of India v Ahmedbhoy Habibbhoy and Kesowram Ramanand, (1883) ILR 8
Bom 35.
22. Campbell v Padington Corporation, (1911) 1 KB 869 : 104 LT 394 : 27 TLR 232.
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to the fact that the offices of the defendant’s agents were shut on the Saturday and
the Sunday and to the difficulty of getting labour during the weekend, no steps to
remedy the risk to passers-by had been taken until the Monday. The owner had no
actual knowledge of the state of the premises. It was held that the defendant must be
presumed to have knowledge of the existence of the nuisance, that he had failed to
take reasonable steps to bring it to an end although he had ample time to do so, and
that, therefore, he had “continued” it and was liable to the plaintiff. 23

20.2.5 Obstruction by formation of queue

The defendant, a shopkeeper, had a licence to sell vegetables and fruits. At a time
when there was a scarcity of potatoes, he sold only 1lb. per ration book. Queues of
customers at the defendant’s shop formed which, at time, extended on the highway in
front of the neighbouring shops. In an action by the keepers of those shops against the

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defendant, the Judge found that neither nuisance nor damage to the plaintiffs had been
proved. It was held also that even if a nuisance had been established, since the defendant
in distributing food essential for the public, had been carrying on his business in a
normal and proper way, without doing anything unreasonable or unnecessary, the
defendant could not be said to have created and so to be responsible for the nuisance;
the queues at the time were due to the short supply of potatoes. 24

20.2.6 Dust and vibration from quarry

Some quarry owners conducted their operations in such a manner that personal
discomfort was caused to the neighbouring householders by vibration and by dust
coming from the quarry which settled on their houses and garden. It was held in action
at the instance of the Attorney General that the nuisance from vibration causing
personal discomfort was sufficiently widespread to amount to a public nuisance and that
injunction was rightly granted against the quarry owners restraining them from carrying
on their operations in the above manner. 25

20.3 Private Nuisance

Private nuisance is the using or authorising the use of one’s property, or of anything
under one’s control, so as to injuriously affect an owner or occupier of property by
physically injuring his property or affecting its enjoyment by interfering materially with
his health, comfort or convenience. 26
The essentials of nuisance thus are (1) an unlawful act; and (2) damage actual or
presumed. Damage actual or presumed is an essential element for an action on nuisance.

23. Leanse v Egerton (Lord), (1943) 1 KB 323. See further title 19.3.6, p 585, Chapter 19.
24. Dwyer v Mansfield, (1946) 1 KB 437 : (1996) 2 All ER 247 : 62 TLR 400.
25. Attorney General v PYA Quarries, (1957) 1 All ER 894 : (1957) 2 QB 169 : (1957) 2 WLR 770.
26. Winfield defines private nuisance as “unlawful interference with a person’s use or enjoyment of land, or some
right over, or in connection with it.” Winfield and Jolowicz, Tort, 12th Edn, p 380; Bhanwarlal v Dhanraj,
AIR 1973 Raj 212 (216). See further Usha Ben v Bhagya Laxmi Chitra Mandir, AIR 1978 Guj 13.
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Further, the damage must be substantial and not merely sentimental, speculative trifling,
fleeting or evanescent. 27
Private nuisances are of three kinds: (1) nuisance by encroachment on a neighbour’s
land; (2) nuisance by a direct physical injury to a neighbour’s land; and (3) nuisance by
interference with a neighbour’s quiet enjoyment of his land eg, by wrongful escape of
smoke. 28 The essence of private nuisance is the same in all the three cases namely
interference with land or enjoyment of land. 29 In the case of class (1) or (2) the measure
of damages is the diminution in the value of the land and in case of class (3) loss of
amenity value, if there be no diminution in market value. 30 If the occupier of land
suffers personal injury as a result of inhaling the smoke he may have a cause of action in
negligence but he will have no cause of action in nuisance for his personal injury. 31
Thus, the quantum of damages in private nuisance does not depend on the number of
those enjoying the land in question. 32 It also follows that the only persons entitled to sue

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for loss in amenity value as in the case of diminution in the value of the land are the
owner or the occupier with the right to exclusive possession. 33 Thus, persons merely
residing with the owner but having no right in the land eg wife and children have no
cause of action in nuisance. 34
Private nuisances include acts leading to (a) wrongful disturbances of easements or
servitudes, eg obstruction to light and air, disturbance of right to support; or (b)
wrongful escape of deleterious substances into another’s property, such as smoke, smell,
fumes, gas, noise, water, filth, heat, electricity, disease-germs, trees, vegetation, animals,
etc. 35 The forms of this (nuisance) are innumerable. But whatever be the type, it does
not follow that any harm constitutes a nuisance. The whole law on the subject really
represents a balancing of conflicting interests. In fact, the law repeatedly recognises that a
man may use his own land so as to injure another without committing a nuisance. It is
only if such use is unreasonable that it becomes unlawful. Reasonableness plays an
important part in determining whether or not there has been a nuisance. 36
The liability for nuisance “has been kept under control by the principle of reasonable
user the principle of give and take as between neighbouring occupiers of land, under
which those acts necessary for the common and ordinary use may be done, if
conveniently done, without subjecting those who do them to action.” 37 Normal
activities of tenants of a neighbouring flat do not amount to a nuisance even though the

27. Rafat Ali v Sugjani Bai, AIR 1999 SC 283, pp 285, 286 : (1999) 1 SCC 133.
28. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684.
29. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426, p 442.
30. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684.
31. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684.
32. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684.
33. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684; See
also, Fearn v Board of Trustees of the Tate Gallery, [2023] UKSC 4; Jalla v Shell International Trading and
Shipping Co Ltd, [2023] UKSC 16.
34. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL), p 441 : (1997) AC 655 : (1997) 2 WLR 684.
35. See Dhanusao v Sitabai, ILR (1948) Nag 698.
36. Bhanwarlal v Dhanraj, AIR 1973 Raj 213 (216, 217.)
37. Cambridge Water Co Ltd v Eastern Counties Leather plc., (1994) 1 All ER 53, pp 70, 71 : (1994) 2 AC 266 :
(1994) 2 WLR 53 (HL); Southwork London Borough Council v Mills, (1999) 4 All ER 449, p 460 (HL).
Chapter 20 Nuisance 689

noise from them is heard because of inadequate sound proofing. In such a case neither
the tenants nor the landlord can be held liable for nuisance. 38
Private nuisance in contrast to public nuisance is an act affecting some particular
individual or individuals as distinguished from the public at large. It cannot be made the
subject of an indictment, but may be the ground of a civil action for damages or an
injunction or both.
A right to commit a private nuisance may be acquired by prescription as an
easement. 39 But user which is neither physically capable of prevention by the owner of
the servient tenement, nor actionable, cannot support an easement. This is applicable
both to the affirmative and negative easements. Thus the right to make a noise so as to
annoy a neighbour cannot be supported by user unless during the period of user the
noise has amounted to an actionable nuisance. 40

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In an action for nuisance it is no defence that the plaintiff himself came to the
nuisance; 41 or that the act causing nuisance is beneficial to the public; 42 or the place
where the nuisance is created is the only place suitable for the purpose; 43 or that the
defendant is merely making a reasonable use of his property. 44
A person is not liable for a nuisance constituted by the state of his property unless (a)
he causes it; or (b) by the neglect of some duty he allows it to arise; or (c) when it has
arisen without his own act or default, he omits to remedy it within a reasonable time
after he became or ought to have become aware of it. 45
A man may become responsible for a nuisance by erecting and working a noisy
Smith’s forge or workshop; 46 or a striking tallow furnace; 47 or a privy; 48 or by making
cesspool, the filth of which percolates through the soil and contaminates the water of his
neighbour’s well or spring; 49 or by keeping a number of vans waiting before a shop
door. 50

20.4 Highways
If nuisance is created as a result of something which has been done by the highway
authority, then liability will arise. “The moment the structure of the road is interfered
with and it comes within the ambit of the operation commenced by the person who is

38. Southwork London Borough Council v Mills, supra.

39. Leconfiled v Lansdale, (1870) LR 5 CP 657.
40. Sturges v Bridgman, (1879) 11 Ch D 852; Murgatroyd v Robinson, (1857) 7 El & Bl 391 : 48 LT Ch
785: 41 LT 219.
41. Elliotson v Feetham, (1835) 2 Bing NC 134; Bliss v Hall, (1838) 4 Bing NC 183.
42. Shelfer v City of London Electric Lighting Co, (1895) 1 Ch 287, 316 : 72 LT 34 : 43 WR 238.
43. St Helen’s Smelting Co v Tipping, (1865) 11 HLC 642; Bamford v Turnley, (1860) 3 B & S 62.
44. Broder v Saillard, (1876) 2 Ch D 692, 701 : 24 WR 1011; Reinhardt v Mentasti, (1889) 42 Ch D 685.
45. Cunliffe v Bankes, (1945) 1 All ER 459. See further Lippiatt v South Gloucestershire Council, (1999) 4 All
ER 149 (CA).
46. Bradley v Gill, (1862) 125 Eng Rep 1, Lutw 69. See Sadashiva Chetty v Rangappa Raju, (1918) MWN 293 :
24 MLT 17 where an Oil-mill which was causing noise and emitting foul smell was held to be a nuisance.
47. Bliss v Hall, (1838) 5 Scott 500.
48. Jones v Powell, (1629) Hutt 135.
49. Norton v Schoolefield, (1842) 9 M & W 655.
50. Attorney General v Brighton and Have Cooper Supply Association, (1900) 1 Ch 276.
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entitled to interfere with the structure of the road, then, until that road is restored into
the condition in which it was before that alteration of its structure began, it seems to me
the person who interfered with it is responsible for a misfeasance.” 51 Under the
Highways (Miscellaneous Provisions) Act, 1961, the common law rule that a highway
authority is not liable for non-feasance is abolished. Therefore, the distinction between
misfeasance and non-feasance by local authorities is now abrogated. The law is to be
found now in the Highways Act, 1980. In any action against a Highway Authority for
its failure to maintain a highway, it is a defence to prove that the authority had taken
such care as in all the circumstances was reasonably required. 52
If a nuisance is created on a highway by a private individual liability would arise if any
person is injured as a result of what has been done irrespective of negligence. 53 If
anything is placed on the highway which is likely to cause an accident being an
obstruction to those who are using the highway on their lawful occasion (such as a

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vehicle unlighted and unguarded standing there at night) and an accident results, there is
an actionable nuisance. 54 In the absence of evidence to establish prima facie that a
highway is dangerous to traffic and where there is no breach of obligation on the part of
the highway authority to keep the pavement which is part of the highway in repairs,
users of the highway must take account of the possibility of unevenness in the
pavement. 55
A tramway company after a heavy snowstorm cleaned their track by means of a snow-
plough, and thereby increased the deposit of snow in certain portions of the street, and,
in order to prevent the snow or snow water from freezing in the grooves, they scattered
salt upon the rails and their vicinity. The snow and salt in combination formed a wet briny
amalgam, and the slush thus formed was left to remain in the street without being
removed then and there. It was held that those acts of the tramway company amounted to
an unauthorised nuisance, and that they were responsible for it, notwithstanding the fact
that the duty of removing any obstruction in the street rested with the Town Council as
the street authority.56 A motor omnibus of the defendants, in which the plaintiff was a
passenger, “skidded” upon a road the surface of which was greasy from rain, and ran into
an electric light standard, and the plaintiff was injured. It was assumed without dispute
that motor omnibuses, however well constructed, had a tendency to skid, when the road
was greasy. It was held that there was no evidence that the defendants’ allowing the motor
omnibus to run constituted a nuisance. 57

51. Per Lord Halsbury in Mayor and Corporation of Shoreditch v Bull, (1904) 90 LT 210, 211; Newsome v
Darton Urban District Council, (1938) 1 All ER 79, affirmed in (1938) 3 All ER 93.
52. For actions against Highway Authority, see Griffiths v Liverpool Corporation, (1967) 1 QB 374; Haydon
v Kent County Council, (1978) QB 343 : (1978) 2 WLR 485 : (1978) 2 All ER 97. See further title
3.4.1 Chapter 3, p 43.
53. Midwood and Co Ltd v Manchester Corporation, (1905) 2 KB 597.
54. Ware v Garston Haulage Co Ltd, (1944) KB 30.
55. Meggs v Liverpool Corpn, (1968) 1 All ER 1137.
56. Ogston v Aberdeen District Tramways Co, (1897) AC 111.
57. Wing v London General Omnibus Co (1909) 2 KB 652. See McGowan v Stott, (1923) 143 LT 217,
where this case is commented on.
Chapter 20 Nuisance 691

20.4.1 Leaving unlighted vehicle on road at night

A motorcyclist at night ran into the back of a trailer which was attached to a stationary
lorry standing on the near side of a highway. The lorry and trailer were unattended and
no rear light showed from the trailer. It was held that the lorry and trailer were an
obstruction on the highway, and as such constituted an actionable nuisance. There was a
dangerous obstruction in the highway and consequently there was an absolute duty on
the defendants to light it or otherwise efficiently guard it to prevent accidents. 58

20.4.2 Injury caused by subsistence of highway

The defendants had made a trench in a highway for the purpose of laying a drain. The
trench was filled in, but after three years a subsidence occurred at the site of the
excavation. The plaintiff, while riding a bicycle, passed over the subsidence, and was

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thrown from his machine and injured. It was found that the subsidence was the result of
the work, though the work had not been done negligently. It was held that (1) the
defendants, having brought a nuisance on the highway, were liable to the plaintiff; (2)
the defendants, being under a duty to make good the inevitable subsidences resulting
from the excavation were also liable on the ground of negligence in not discovering and
remedying the danger. 59

20.5 Distinction between Injury to Property and Physical Discomfort

There is a distinction between an action for a nuisance in respect of an act producing a
material injury to property, and one brought in respect of an act producing personal
discomfort. As to the latter a person must, in the interest of the public generally, submit
to the discomfort of the circumstances of the place, and the trades carried on around
him; as to the former the same rule would not apply. 60 Lord Westbury, LC, observed:
In matters of this description it appears to me that it is a very desirable thing to make the
difference between an action brought for a nuisance upon the ground that the alleged nuisance
produces material injury to property, and an action brought for a nuisance on the ground that
the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to
the latter, namely, the personal inconvenience and interference with one’s enjoyment, one’s
quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the
nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend
greatly on the circumstances of the place where the thing complained of actually occurs. If a
man lives in a town, it is necessary, that he should subject himself to the consequences of those
operations of trade which may be carried on in his immediate locality, which are actually
necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of
the inhabitants of the town and of the public at large. If a man lives in a street where there are
numerous shops, and a shop is opened next door to him, which is carried on in a fair and
reasonable way, he has no ground for complaint, because to himself individually there may arise
much discomfort from the trade carried on in that shop. But when an occupation is carried on
by one person in the neighbourhood of another, and the result of that trade, or occupation, or
business, is a material injury to property, then there unquestionably arises a very different
consideration... in a case of that description, the submission which is required from persons
living in society to that amount of discomfort which may be necessary for the legitimate and free

58. Ware v Garston Haulage Co Ltd, (1944) KB 30.

59. Newsome v Darton Urban District Council, (1938) 1 All ER 79.
60. St Helen’s Smelting Company v Tipping, (1865) 11 HLC 642.
692 Law of Torts Chapter 20

exercise of the trade of their neighbours, would not apply to circumstances the immediate result
of which is sensible injury to the value of the property. 61
Although when you once establish the fact of actual substantial damage it is quite
right and legitimate to have recourse to scientific evidence as to the causes of that
damage, still if you are obliged to start with scientific evidence, such as the microscope
of the naturalist, or the tests of the chemist, for the purposes of establishing the damage
itself, that evidence will not suffice. The damage must be such as can be shown by a
plain witness to a plain common juryman.
The damage must also be substantial, and it must be, in my view, actual; that is to say,
the court has, in dealing with questions of this kind, no right to take into account
contingent, prospective, or remote damages... The law does not take notice of the
imperceptible accretions to a river bank or to the seashore, although after the lapse of
years they become perfectly measurable and ascertainable; and if, in the course of nature,

LexisNexis India
the thing itself is so imperceptible, so slow, and so gradual as to require a great lapse of
time before the results are made palpable to the ordinary senses of mankind, the law
disregards that kind of imperceptible operation. So, if it were made out that every
minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain
of dust deposited upon a tree, that would not afford a ground for interfering, although
after the lapse of a million minutes the grains of poison or the grains of dust could be
easily detected.
It would have been wrong, as it seems to me, for this court in the reign of Henry
VI to have interfered with the further use of sea coal in London, because it had been
ascertained to their satisfaction, or predicted to their satisfaction, that by the reign
of Queen Victoria both white and red roses would have ceased to bloom in the
Temple Gardens. If some picturesque haven opens its arms to invite the commerce
of the world, it is not for this court to forbid the embrace, although the fruit of it
should be the sights and sounds, and smells of a common seaport and ship-building
town, which would drive the Dryads and their masters from their ancient
solitudes. 62
Everything must be looked at from a reasonable point of view; therefore the law
does not regard trifling and small inconveniences, but only regards sensible
inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of
the property which is affected. 63 Thus, interference with television reception by
erection of a tall building like loss of visual prospect caused by a tall building is not
such an interference with the use and enjoyment of land as to constitute actionable
public or private nuisance. 64

61. St Helen’s Smelting Co v Tipping, (1865) 11 HLC 642, 650; Bihari Lal v James Maclean, (1924) ILR 46
All 297.
62. Per James, LJ, in Salvin v North Brancepeth Coal Co, (1874) LR 9 Ch 705, 709.
63. Per Lord Wensleydale in St. Helen’s Smelting Co v Tipping, (1865) 11 HLC 642, 653; Salvin v North
Brancepeth Coal Co, (1874) LR 9 Ch 705, 709; Philip v Subbammal, ILR 1956 TC 1306.
64. Hunter v Canary Wharf Ltd, (1996) 1 All ER 482 : (1997) AC 655 : (1997) 2 WLR 684 (CA) : (1997)
2 All ER 426 (HL).
Chapter 20 Nuisance 693

It appears that the degree of harm, in an action for personal discomfort, must be
greater than in an action for injury to property. As to the degree of discomfort which
constitutes a nuisance, Knight Bruce, V C., said in Walter v Selfe,: 65
Both on principle and authority the important point next for decision may...be thus put:
ought this inconvenience to be considered in fact as more than fanciful, more than one of mere
delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort
physically of human existence, not merely according to elegant or dainty modes and habits of
living, but according to plain and sober and simple notions among the English people?”

20.6 Injury to Property

Any nuisance whereby sensible injury is caused to the property of another is
actionable.

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20.6.1 Trade
In considering whether any act is a nuisance, regard must be had not only to the thing
done, but to the surrounding circumstances. What would be a nuisance in one locality
might not be so in another. 66 Thesiger, LJ, said:
Whether anything is a nuisance or not is a question to be determined, not merely by an
abstract consideration of the thing itself, but in reference to its circumstances; what would be a
nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is
devoted to a particular trade or manufacture carried on by the traders or manufacturers in a
particular and established manner not constituting a public nuisance,......the trade or
60
manufacture so carried on in that locality is not a private or actionable wrong.
Where no right by prescription exists to carry on a particular trade, the fact that the
locality where it is carried on is one generally employed for the purpose of that and
similar trades, will not exempt the person carrying it on from liability to an action for
damages in respect of injury created by it to property in the neighbourhood. 67 The grant
of the right to carry on a particular trade does not authorize the committal of a nuisance,
in the absence of proof that the trade could not be carried on otherwise. 68
One A had bought an estate in a neighbourhood where many manufacturing works
were carried on. Among others there were works of a copper smelting company. It was
not proved whether these works were in actual operation when the estate was bought.
The vapours from these works, when they were in operation, were proved to be injurious
to the trees on A’s estate. It was held that A was entitled to damages. 69 The plaintiff was
the owner of a house and park which adjoined the defendants’ gas-works. Immediately
adjoining the defendants’ premises was a plantation of trees which had been planted by
the plaintiff to screen off the gas-works. The fumes and smoke from the gas-works were
carried by wind across the plantation and had injuriously affected the trees to such an

65. Walter v Selfe, (1851) 4 De G & S 315, 322.

66. Sturges v Bridgman, (1879) 11 Ch D 852 : 41 LT 219 : 48 LJ Ch 785.
67. St. Helen’s Smelting Co v Tipping, (1865) 11 HLC 642.
68. Pwllbach Colliery Company Limited v Woodman, (1915) AC 634.
69. St. Helen’s Smelting Co v Tipping, (1865) 11 HLC 642, applied in Halsey v Esso Petroleum Company Ltd,
(1961) 2 All ER 145 : (1961) 1 WLR 683 :105 SJ 209, where the plaintiff was awarded damages for the
nuisance caused by acid smuts and granted an injunction against the nuisance caused by smell and noise.
694 Law of Torts Chapter 20

extent that the tops of some of the trees were dying whilst others were dead. It was held
that the plaintiff was entitled to an injunction restraining the defendants from carrying
on their works so as to cause injury to the plaintiff’s property. 70

20.6.2 Sewers, Drains, etc.

The prima facie right of every occupier of a piece of land is to enjoy that land free
from all invasion of filth or other matter coming from any artificial structure on
adjoining land. He may be bound by prescription or otherwise to receive such matter.
Moreover, this right of every occupier of land is an incident of possession, and does not
depend on the acts or omissions of other people; it is independent of what they may
know or not know of the state of their own property, and independent of the care or
want of care which they may take of it. 71

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A person cannot claim a right to foul an ordinary drain by discharging into it what it
was not intended to carry off and then throw on other persons an obligation to alter the
drain in order to remedy the nuisance that he has produced; nor can he say that any
other person must meanwhile put up with such nuisance. 72
A company operating a sewerage system on a commercial basis will become liable in
nuisance if the sewerage system becomes inadequate and the plaintiff’s property is
flooded with surface and foul water unless the company, in case it has a statutory
authority shows that there was absence of negligence on its part; or in any other case that
it took all necessary steps to prevent the nuisance. On the above reasoning, the Court of
Appeal in Marcie v Thames Water Utilities Ltd, 73 held the defendant company, a
sewerage undertaker, to be liable. But the decision was reversed by the House of Lords 74
on the ground that under the statutory regime in the Water Industry Act, 1991 it was
for the regulator of the Water Industry to secure that the companies appointed as water
undertakers properly carried out their functions and the regulator could enforce the
obligation of a sewerage undertaker by an enforcement order, therefore a person who
sustained loss or damage as a result of a sewerage undertakers contravention of his
general duty had no direct remedy under the Act. Such a person could only bring
proceedings against a sewerage undertaker in respect of his failure to comply with an
enforcement order, if one had been made.

20.6.3 Trees
A person can bring an action for damage caused to his property by overhanging
branches75 of a tree on his neighbour’s land or by its roots which burrow under the

70. Wood v Conway Corporation, (1914) 2 Ch 47.

71. Humphries v Cousins, (1877) 2 CPD 239; Smith v Kenrick, (1849) 7 CB 515; Baird v Williamson,
(1863) 15 CBNS 376; Broder v Saillard, (1876) 2 Ch D 692; Hurdman v North Eastern Ry Co, (1878) 3
CPD 168, 173; Ramasubbier v Mahomed Khan Saheb, (1937) 46 MLW 466.
72. Galstaun v Doonia Lal Seal, (1905) ILR 32 Cal 697. In this case the defendant, the owner of a shellac
factory, discharged into the municipal drain liquid refuse of an offensive character and he was restrained
from doing so as it interfered with the plaintiff’s ordinary comfort.
73. Marcie v Thames Water Utilities Ltd, (2002) 2 All ER 55 (CA).
74. (2004) 1 All ER 135 (HL).
75. Lemmon v Webb, (1894) 3 Ch 1.
Chapter 20 Nuisance 695

ground. 76 In Dilaware Ltd v Westminister City Council, 77 the respondent was owner
of a tree growing in the footpath of a highway. The roots of the tree caused cracks in
the neighbouring building. The transfree of the building, after the cracks were
detected, was held entitled to recover reasonable remedial expenditure in respect of
the entire damage from the continuing nuisance caused by the trees. No distinction
was to be drawn between trees that were planted and those that were self-sown, and
it was no defence to say that damage was caused by natural growth. 78 The owner of
a tree which overhangs the neighbour’s land is not entitled to go on the latter’s land
in order to gather the fruits that fall there from the overhanging branch. 79 The
person aggrieved can himself cut off the overhanging branches and abate the
nuisance without entering upon the neighbour’s land. No prescriptive right can be
acquired to have an overhanging tree as an old nuisance does not become by passage
of time a respectable nuisance. 80

20.6.4 Nuisance due to Smoke

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The second defendants owned and operated coke ovens situate 50 yards away from a
road. The process of manufacturing coke involved the production at intervals of clouds
of smoke and steam which, under certain conditions of wind and weather, passed low
over the road so as to obscure the view of passengers thereon. While one of these clouds
was so passing a collision occurred between a motor-car and a motor omnibus driven by
a servant of the first defendants, both of which vehicles were travelling along the road,
two passengers in the car sustaining fatal injuries. It was found that the omnibus was
being driven negligently at the time of the accident. It was held that the discharge of
smoke and steam across the road on the occasion of the accident was a nuisance caused
by the second defendants, and the second defendants were also guilty of negligence in
not posting a man at each end of the area affected to warn approaching vehicles as soon
as a discharge was imminent. 81

20.7 Physical Discomfort

Acts necessary for the common and ordinary use and occupation of land and houses
may be done, if conveniently done, without subjecting those who do them to an action,
eg, burning weeds, emptying cesspools, making noises during repairs, and other
instances which would be nuisance if done wantonly and maliciously. The convenience
of such a rule may be indicated by calling it a rule of give and take, live and let live. The
above principle will not apply if what has been done was not the using of land in a
common and ordinary way, but in an exceptional manner; not unnatural, nor unusual,
but not the common and ordinary use of lands. But anything which under any
circumstances lessens the comfort or endangers the health or safety of a neighbour is not
necessarily an actionable nuisance. Whenever, taking all the circumstances into

76. Bulter v Standard Telephones and Cables, Ltd, (1940) 1 KB 399 : 163 LT 145 : (1940) 1 All ER 121.
77. Dilaware Ltd v Westminister City Council, (2001) 4 All ER 737 (HL).
78. Davey v Harrow Corporation, (1958) 1 QB 60 : (1957) 2 WLR 941 : (1957) 2 All ER 305.
79. Navan Goundan v Mambattanveetu Kannan, (1950) 1 MLJ 179 : (1950) 63 MLW 81.
80. Batcha Rowther v Alagappan Servai, AIR 1959 Mad 12 : (1958) 2 MLJ 157.
81. Holling v Yorkshire Traction Co Ltd, (1948) 2 All ER 662.
696 Law of Torts Chapter 20

consideration, including the nature and extent of the plaintiff’s enjoyment before the
acts complained of, the annoyance is sufficiently great to amount to a nuisance an action
will lie whatever the locality may be. 82 Thus noise from ordinary use of neighbouring
flats does not constitute nuisance. 83
The interference with a man’s comfort which will justify the intervention of the courts
must be a material interference with an ordinary and reasonable standard of comfort,
and must be considered in the light of the circumstances of time and place. It is not
necessary that the acts or state of things complained of should be noxious in the sense of
being injurious to health. Smoke, noise and offensive odours, although not injurious to
health, may constitute a nuisance. 84 It has been held that severe and recurrent
interference with enjoyment of television by an ordinary householder using an aerial on
his house need not constitute an actionable nuisance. 85 Subject to building regulatory
laws a person was free to build on his land unrestricted by the fact that the presence of

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his building might of itself interfere with his neighbour’s enjoyment of his land.
Therefore, interference with television reception caused by the mere presence of a
building was not capable of constituting an actionable private nuisance. 86 A man may,
without being liable to an action, exercise a lawful trade as that of a butcher, brewer, or
the like, notwithstanding it be carried on so near the house of another as to be
annoyance to him in rendering his residence there less delectable or agreeable; provided
the trade be so conducted that it does not cause what amounts in point of law to
nuisance to the neighbouring house. 87
Carrying on an offensive trade so as to interfere with another’s health and comfort or
his occupation of property is a legal nuisance. 88
Nuisances of this class for the most part arise in respect of—
(i) Obstruction of light.
(ii) Pollution of air or water.
(iii) Noise.
Light.—With regard to obstruction of light, see Chapter 15, title 15.7.8.

82. Bamford v Turnley, (1862) 31 LJQB 286. The defendant kept a hotel adjoining the plaintiff’s residence,
and put a kitchen stove in a place where no stove had previously been, and so near the wine-cellar of the
plaintiff as to damage the wine. It was admitted that the stove was one of an ordinary character, well
constructed, and that precaution had been taken to prevent its being obnoxious, but an injunction was
granted : Reinhardt v Mentasti, (1889) 42 Ch D 685. This decision may be supported on the
assumption of a finding that the placing for the first time of a large stove against a neighbour’s cellar,
when it might be placed elsewhere is not a reasonable user conveniently exercised.
83. Baxter v Camden London Borough Council, (1999) 1 All ER 237 : (2001) QB 1 : (1999) 2 WLR 566 (CA).
84. Crump v Lombert, (1867) LR 3 Eq 409, applied in Halsey v Esso Petroleum Company Ltd, (1961) 2 All
ER 145 : (1961) 1 WLR 683 : 105 SJ 209. If the door of a privy, which opens on a public street, is left
open and constitutes nuisance, an action lies: Krishna Chandra v Gopal Chand, (1937) 39 PLR 664.
85. Bridlington Relay v Yorkshire Elec Board, (1965) 1 All ER 264 : (1965) Ch 436 : (1965) 2 WLR 349 :
109 SJ 12.
86. Hunter v Canary Wharf Ltd, (1997) 2 All ER 426 (HL).
87. Bamford v Turnley, (1862) 31 LJ QB 286.
88. Galstaun v Doonia Lal Seal, (1905) ILR 32 Cal 697; Sadasiva Chetty v Rangappa Rajoo, (1918) MWN
293 : 24 MLT 17.
Chapter 20 Nuisance 697

Air.—If smoke, vapour, and noisome gases are communicated to the air which
surrounds and enters the plaintiff’s house, so as to cause inconvenience to the occupiers
thereof, and render the house manifestly less comfortable, the act will be a nuisance.
In India, voluntarily vitiating the atmosphere so as to make it noxious to the public
health is indictable as an offence under section 278 of the Indian Penal Code. The Air
(Prevention and Control of Pollution) Act, 1981 requires scheduled industries located
anywhere in the country and any industry located within the control areas to abide by
the standards laid down by the Central or State Board and provides penalties for non-
compliance. Proceedings under the Code of Criminal Procedure can also be taken for
removing a public nuisance caused by Air, water, noise or environmental pollution. 89
The 1981 Air Act did not include the provision relating to control of noise pollution but
by amendment in 1987, noise present in the atmosphere has been brought within the
definition of air pollutant. The Central Pollution Control Board has laid down certain

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noise standards under section 16 of the Act. The Central Government has also brought
into existence the Noise Pollution (Regulation and Control) Rules, 2000 under the
Environment Protection Act, 1986 for preventing adverse impact of noise on human
health including harmful psychological and physiological effects. 90
An injunction was granted to prevent a gas company from manufacturing gas in such
close proximity to the premises of the plaintiff, a market gardener, and in such a manner
as to injure his garden produce by the escape of noxious matter, 91 to prevent a company
from carrying on calcining operations in any manner whereby noxious vapours would be
discharged, on the pursuer’s land, so as to do damage to his plantations or estate; 92 and
to prevent a person from turning a floor underneath a residential flat into a restaurant
and thereby causing a nuisance by heat and smell to the occupier of the flat. 93
Water.—As regards nuisance from pollution of water, see Riparian Rights, Chapter
15, title 15.7.3.
Pollution of a public spring or reservoir, so as to render it less fit for the purpose for
which it is ordinarily used is a public nuisance, and is punishable as an offence. 94
Noise. 95—Quietness and freedom from noise are indispensable to the full and free
enjoyment of a dwelling-house. No proprietor has an absolute right to create noises
upon his own land, because any right which the law gives is qualified by the condition

89. Municipal Council Ratlam v Vardhichand, AIR 1980 SC 1622 : (1980) 4 SCC 162; Krishna Gopal v
State of MP, 1986 Cr LJ 396 (MP); Followed in, R. Kumaravel Gounder v Sub-Divisional Executive
Magistrate/Sub-Collector, (2012) 4 CTC 661.
90. See Dr Nazhat Praveen Khan ‘Noise Pollution and Problem of its Legal Control’, AIR 2004 Journal 357;
Noise Pollution, Re, (2005) 5 SCC 733 (paras 14, 94, 103) : AIR 2005 SC 3136.
91. Broadbent v Imperial Gas Co., (1856) 7 De GM & G 436.
92. Shotts Iron Co v Inglis, (1882) 7 App Cas 518. Erection of chimney with holes emitting smoke
actionable as a nuisance; B Venkatappa v B Lovis, AIR 1986 AP 239.
93. Sanders Clark v Grosvenor Mansions Co, (1900) 16 TLR 428.
94. See the Indian Penal Code, section 277.
95. The principles enunciated in English and Indian cases relating to nuisance (Private) caused by noise are
summarised in Dhannalal v Chittar Singh, AIR 1959 MP 240, (at pp 243-244.) See also Ram Lal v
Mustafabad O& CG Factory, AIR 1968 Punj 399, (at pp 402-403,) where the principles relating to
actionable nuisance are deduced from a review of case-law.
698 Law of Torts Chapter 20

that it must not be exercised to the nuisance of his neighbours or of the public. 96
Damages were awarded to the proprietor of a hotel for the inconvenience caused by dust
and noise in demolition and building operations unreasonably carried on in the
neighbourhood by the defendants. 97 As to what amount of noise, or annoyance from
noise, will be sufficient to sustain an action, there is no definite legal rule or measure. It
is a question of fact in each case, having regard to all the surrounding circumstances.
The question so entirely depends on the surrounding circumstances—the place where,
the time when, the alleged nuisance, the mode of committing it, how, and the duration
of it, whether temporary or permanent, occasional or continual—as to make it
impossible to lay down any rule of law applicable to every case. 98 Noise will create an
actionable nuisance only if it materially interferes with the ordinary comfort of life,
judged by ordinary, plain and simple notions, and having regard to the locality; the
question being one of degree in each case. 99 The law as stated above relating to

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actionable nuisance by noise has been expressly approved by the Supreme Court. 100 The
standard of judging it is according to that of men of ordinary habits, and not of men of
fastidious tastes or of over-sensitive nature, whether due to religious sentiment or not. 101
In Colls’ case Earl of Halsbury, LC, said:
A dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as
if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell,
and noise may give a cause of action, but in each of such cases it becomes a question of
degree, and the question is in each case whether it amounts to a nuisance which will give a
right of action. 102

96. Allen v Flood, (1898) AC 1, 101; Ismail Sahib v Venkatanarasimhulu, ILR 1937 Mad 51.
97. Andreae v Selfridge & Co, (1938) 1 Ch 1 : 151 LT 317 : (1973) 3 All ER 255 (CA).
98. Bamford v Turnley, (1860) 3 B & S 62, 72.
99. Vanderpant v Mayfair Hotel Co., (1930) 1 Ch 138 : 142 LT 198. Where the defendant established an
electric flour-mill adjacent to the plaintiff’s house in a bazar locality and the running of the mill
produced such noise and vibrations that the plaintiff and his family did not get peace and freedom from
noise to follow their normal avocations during the day and did not have a quiet rest at night, held, that
the running of the mill amounted to a private nuisance which should not be permitted. In a case like
this it is not necessary to prove that the health of the inhabitants of the plaintiff’s house has been
impaired: Datta Mal Chiranji Lal v Lodh Prasad, AIR 1960 All 632. See further Radhey Shiam v Gur
Prasad, AIR 1978 All 86.
100. Noise Pollution (v) Re, (2005) 5 SCC 733 (Paras 10 and 102) : AIR 2005 SC 3136. See further text and
footnotes 304, 305, p 444.
101. Muhammad Jalil Khan v Ram Nath Katua, (1930) ILR 53 All 484. See Janki Prasad v Karamat Husain,
(1931) ILR 53 All 836, where the question whether music in a temple amounts to a private nuisance is
discussed at length; See also, GMM Pfaudler Ltd v TATA AIG Life Insurance Company Limited (2011) 1
Bom CR 670 : (2010) 7 Mah LJ 541 : (2010) 6 AIR Bom R 131, wherein a ‘chiller plant’ of the
defendants caused vibrations and noise in the office premises of the plaintiff. A suit for injunction on
grounds of nuisance was filed by the plaintiff. The Court, after discussing at length, English and Indian
law on the point of nuisance, held that reasonable noise of vibration would not constitute an actionable
tort of nuisance.
102. Colls v Home and Colonial Stores, Ltd, (1904) AC 179, 185. See Hari v Vithal, (1905) 8 Bom LR 89,
where some coppersmiths were restrained from carrying on their kirtans in a way so as to cause
disturbance to the conducting of bhajan (hymns) in a temple. See Ismail Sahib v Venka-
tanarasimhulu, ILR 1937 Mad 51, where during the performance of a ceremony, noise was produced by
tomtom, cymbals, etc. long after the hour when people would ordinarily go to sleep, and it was held that
this amounted to a nuisance.
Chapter 20 Nuisance 699

A person living in a district specially devoted to a particular trade cannot complain of

any nuisance by noise caused by the carrying on of any branch of that trade without
carelessness and in a reasonable manner. A resident in such a neighbourhood must put
up with a certain amount of noise. The standard of comfort differs according to the
situation of property and the class of people who inhabit it. 103 To give a house-holder a
right to an injunction against a neighbour for carrying on a noisy business in a trade
district, the noise must amount to a nuisance, regard being had to the nature and habits
of the neighbourhood and to the pre-existing noises. 104 In a locality devoted to noisy
trades, such as the printing and allied trades, if a printing house or factory subjects the
occupier of an adjoining residence to such an increase of noise as to interfere
substantially with the ordinary comfort of human existence according to the standard of
comfort prevailing in that locality, that is sufficient to constitute an actionable wrong
entitling the occupier to an injunction. 105

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In considering the rights of the parties, it is immaterial whether the persons whose
actions are objected to have come recently to the neighbourhood, or have been
occupying the place for a long time. 106
A prescriptive right to the exercise of a noisome trade on a particular spot may be
established by showing twenty years’ user by the defendant. 107
Constant daily noise in an adjoining house.—The constant daily ringing of a peal of
heavy bells in a house actually adjoining a private residence was held to be an actionable
nuisance and an injunction was granted to restrain it. 108 Injunction was granted to
prevent building operations from being proceeded with during the night to the
annoyance and discomfort of an adjoining occupier. 109 Sending up of fire-works and
causing a band to play for several hours twice a week within one hundred yards of a
dwelling-house; 110 the performance of a circus erected near the plaintiff’s house, making
a loud noise heard through the plaintiff’s house; 111 the collection of crowds outside a
club established for pugilistic encounters; 112 the establishment of a rifle gallery, organ,
and roundabout, in proximity to the plaintiff’s house; 113 erection of a stable in such

103. Rushmer v Polsue & Alfieri Ltd, (1906) 1 Ch 234, 250. See Ball v Ray, (1873) LR 8 Ch 467, where the
principles applying to a person who turns his house to unusual purpose are discussed.
104. Polsue & Alfieri Ltd v Rushmer, (1907) AC 121 : 76 LJ Ch 365 : 96 LT 510.
105. Polsue & Alfieri Ltd v Rushmer, supra. It has been held that a concentration of moving vehicles in a small
area of a public highway, e.g. outside a depot, was a public nuisance : Halsey v Esso Petroleum Company
Ltd, (1961) 2 All ER 145 : (1961) 2 WLR 683.
106. Janki Prasad v Karamat Husain, (1931) ILR 53 All 836.
107. Elliotson v Feetham, (1835) 2 Bing NC 134; Flight v Thomas, (1839) 10 A & E 590. See Goldsmid v
Turubridge Wells Improvement Commissioners, (1865) LR 1 Eq 161, where it was held that no
prescriptive right could be obtained to discharge sewage into a stream passing through plaintiff’s land
and feeding a lake therein perceptibly increasing quantity. No right to hold kirtan upon another’s land
can be acquired as an easement. Such a right may be acquired by custom: Mohini Mohan v Kashinath
Roy, (1909) 13 CWN 1002.
108. Soltau v De Held, (1851) 2 Sim NS 133.
109. Webb v Barker, (1881) WN 158.
110. Walker v Brewster, (1867) LR 5 Eq 25.
111. Inchbald v Robinson, (1869) LR 4 Ch 388.
112. Bellamy v Wells, (1890) 60 LJ Ch 156.
113. Winter v Baker, (1887) 3 TLR 569.
700 Law of Torts Chapter 20

close proximity to a house as to interfere by reason of the noise of the horses with the
enjoyment of the owner of the house; 114 noise from the kitchen of an hotel erected close
to the plaintiff’s residence, 115 were restrained by injunction.
The plaintiffs carried on the business of breeding silver foxes on their land, during the
breeding season the vixens are very nervous, and liable, if disturbed, either to refuse to
breed, to miscarry, or to kill their young. The defendant, an adjoining landowner,
maliciously caused his son to discharge guns on his own land as near as possible to the
breeding pens for the purpose of injuring the plaintiffs. It was held that the plaintiffs
were entitled to an injunction and damages, although the firing took place on the
defendant’s land over which he was entitled to shoot. 116
Music.—Where a nuisance was caused to a tenant of a room in a house by reason of
the floor above being used for dancing and other entertainment causing noise and

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vibration, the court gave nominal damages but declined to grant an injunction on the
ground of balance of convenience. 117 Giving of numerous music lessons by the
defendant in a house separated from the plaintiff’s house by a thin party-wall, varied by
practising and singing, and evening musical entertainments, was held not to be a
nuisance for which an injunction could be granted; and, moreover, the court restrained
the plaintiff from making noises by way of reprisal. 118
Prescription.—A confectioner had for upwards of twenty years used, for the purposes
of his business, a pestle and mortar in his back premises, which abutted on the garden of
a physician, and the noise and vibration were not felt to be a nuisance or complained of
until 1873, when the physician erected a consulting room at the end of his garden, and
then the noise and vibration, owing to the increased proximity, became a nuisance to
him. The question for the consideration of the court was whether the confectioner had
obtained a prescriptive right to make the noise in question. It was held that he had not,
inasmuch as the user was not physically capable of prevention by the owner of the
servient tenement, and was not actionable until the date when it became by reason of
the increased proximity a nuisance in law, and under these conditions, as the latter had
no power of prevention, there was no prescription by the consent or acquiescence of the
owner of the servient tenement. 119

20.8 Who can Sue for Nuisance?

The actual occupier of premises can alone bring an action for nuisance of a temporary
character. If the injured property is in the occupation of tenants, the landlord or
reversioner has no right of action. The latter can bring an action only if the injury

114. Ball v Ray, (1873) LR 8 Ch 467; Broder v Saillard, (1876) 2 Ch D 692.

115. Vanderpant v Mayfair Hotel Co, (1930) 1 Ch 138 : 142 LT 198.
116. Hollywood Silver Fox Farm, Ltd v Emmett, (1936) 2 KB 468 : 155 LT 288 : (1936) 1 All ER 825.
117. Jenkins v Jackson, (1888) 40 Ch D 71. But where the proprietors of an hotel applied for an injunction
to restrain the proprietor of tea rooms and a restaurant on the opposite side of the street, from using his
premises for the purpose of music, dancing, or other entertainments, so as to cause a nuisance to the
plaintiff’s, their servants and guests, the Court granted a limited injunction restraining the defendant
from causing a nuisance by keeping the windows open after midnight while the music and dancing were
going on : New Imperial & Winsudsor Hotel Co v Johnson, (1912) 1 IR 327.
118. Christie v Davey, (1893) 1 Ch 316 : 62 LJ Ch 439.
119. Sturges v Bridgman, (1879) 11 Ch D 85 : 41 LT 219.
Chapter 20 Nuisance 701

complained of is of a permanent nature 120 (eg, obstruction of light, but not such as noise
of machinery in adjacent premises) 121 and injurious to the property and detrimental to
the letting value of the house. 122
If a person takes as tenant an unfurnished house, he cannot, in the absence of a
warranty or other special circumstances, hold the landlord liable because of damages
arising to him during and by reason of his occupancy as tenant through the house being
out of repair or dilapidated. If the tenant brings his wife with him to live in the house,
she cannot be in a better position than her husband by reason of her occupancy of the
house. 123 A person who has no interest in the property, no right of occupation in the
proper sense of the term, cannot maintain an action for a nuisance. The wife of a tenant
was held not entitled to maintain an action for injury caused by a tank falling on her
owing to vibrations caused by the defendant. 124 This has been approved by the House of

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Lords and it has been held that a person who had no right to the land affected by a
nuisance could not sue in private nuisance. Only a person with a right to exclusive
possession of the land affected could sue but exceptionally a person who was in exclusive
possession but who was unable to prove his title could also sue. 125

20.9 Who is Liable for Nuisance?

The action must be brought “against the hand committing the injury, or against the
owner for whom the act was done.” 126 It will lie against the person (1) who creates or
continues a nuisance or authorizes or suffers the creation of a nuisance; or (2) who lets or
sells property with a nuisance on it. A person is liable for a nuisance constituted by the
state of his property (1) if he causes it; (2) if by the neglect of some duty he allowed it to
arise; and (3) if, when it has arisen, without his own act or default, he omits to remedy it
within a reasonable time after he became or ought to have become aware of it. 127
Nuisance arising from escape of things naturally on his land may also make the occupier
liable if he has failed to take reasonable care with regard to them. 128
The question of liability when the nuisance affecting neighbours land and buildings
was not created by the defendant was elaborately considered by the court of appeal in
Holback Hotel Ltd v Scarborough Borough Council, 129 and the following proposition may
be said to have been laid down: (1) The duty to abate the nuisance arose from the
defendant’s knowledge of the hazard and the liability arose only when the defendant was

120. Mumford v OW & W Ry Co, (1856) 1 H & N 34. In this case it was held that a reversioner could not
maintain an action against a railway company for making hammering noises in a shed adjoining his
house by reason whereof the tenant quitted, and he was unable to let the house except at a lower rent.
See Mott v Schoolbred, (1875) LR 20 Eq 22, where a public street was improperly used as a stable yard.
121. Jones v Chappell, (1875) LR 20 Eq 539; Cooper v Crabtree, (1882) 20 Ch D 589 : 51 LJ Ch 544.
122. Alwar Chetty v Madras Electric Supply Corporation Ltd, (1932) ILR 56 Mad 289.
123. Cavalier v Pope, (1905) 2 KB 757 : (1906) AC 428. The decision in this case has been reversed by the
Occupier’s Liability Act, 1957, (5 & 6 Eliz, II, chapter 31).
124. Malone v Laskey, (1907) 2 KB 141 : 76 LJ KB 1134.
125. Hunter v Canary Whart Ltd, (1997) 2 All ER 426 : (1997) AC 655 (HL). See further, pp. 628, 629, ante.
126. Per Lord Kenyon in Stone v Cartwright, (1795) 6 TR 411, 412; Wilson v Peto, (1821) 6 Moore 47.
127. Noble v Harrison, (1926) 2 KB 332, 338.
128. Goldman v Hargrave, (1967) 1 AC 645. For this case see p 611, ante.
129. Holback Hotel Ltd v Scarborough Borough Council, (2000) 2 All ER 705 (CA).
702 Law of Torts Chapter 20

guilty of negligence in abating the nuisance; and (2) The existence of duty and its scope
in a nonfeasance case will be determined by applying the test whether it was fair just and
reasonable to impose a duty or the extent of that duty. In this case the claimants were
the freehold owners and lessees of a hotel which stood on a cliff overlooking the sea. The
land between the hotel grounds and the sea was owned by the defendant Borough
Council which as owner of the servient tenement was under a duty to provide support to
the Hotel grounds. Due to maritime erosion the cliff was inherently unstable. Land slips
had occurred in 1982 and 1986 on the council’s land below the hotel grounds and the
council’s chief engineer had expressed the fear after the second slip that the slip if not
checked could affect part of the hotel’s land. In 1993 there was a massive slip far greater
in magnitude than the earlier slips as a result the ground under the seaward wing of the
hotel collapsed and the rest of the hotel had to be demolished for safety reasons. In a suit
for damages against the council it was held that the council could not have foreseen a

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danger of the magnitude that occurred in 1993 and it was not just and reasonable to
impose liability for damage which was greater in extent than anything that was foreseen
or foreseeable without further geological investigation. Moreover, it was not incumbent
on the council to carry out extensive and expansive remedial work to prevent damage
which it ought to have foreseen.
An occupier of land is liable for the continuation of a nuisance created by others (eg
by trespassers or by persons without his authority or permission) if he continues or
adopts it. He “continues” a nuisance if with knowledge or presumed knowledge of its
existence he fails to take any reasonable means to bring it to an end though with ample
time to do so. He “adopts” it if he makes any use of the erection or artificial structure
which constitutes the nuisance. 130
The acts of two or more persons may, taken together, constitute such a nuisance that
the court will restrain all from doing the acts constituting the nuisance although the
annoyance occasioned by the act of any one of them, if taken alone, would not amount
to a nuisance. For instance, if one person leaves a wheelbarrow standing on a way, that
may cause no appreciable inconvenience, but if a hundred do so that may cause a serious
inconvenience, which a person entitled to the use of the way has a right to prevent, and it
is no defence to any one person among the hundred to say that what he does causes of
itself no damage to the complainant. 131
If, owing to want of repair, premises on a highway become dangerous and constitute a
nuisance, so that they collapse and injure a passer-by or an adjoining owner, the occupier
or owner of the premises, if he has undertaken the duty to repair is answerable, whether he
knew or ought to have known of the danger or not. If the nuisance is created, not by want
of repair, but by the act of a trespasser, or by a secret and unobservable process of nature,
neither the occupier nor the owner responsible for repair is answerable, unless with
knowledge or means of knowledge he allows the danger to continue. 132

130. Sedleigh-Denfield v O’Callaghan, (1940) AC 880, applied in Pemberton v Bright, (1960) 1 All ER 792 :
(1960) 1 WLR 436 : 104 SJ 349.
131. Lambton v Mellish, (1894) 3 Ch 163 : 71 LT 385 : 58 JP 835. In Jawand Singh v Muhammad Din,
(1919) PWR No. 89 of 1920, the defendants, Hindus, were prevented from blowing conches and
beating drums when the plaintiffs, Mahomedans, called out the azan from a mosque.
132. Wringe v Cohen, (1940) 1 KB 229 : (1939) 4 All ER 241, Wilchick v Marks and Silverstone, (1934) 2
KB 56 : 78 SJ 277 : 50 TLR 28, not approved.
Chapter 20 Nuisance 703

An extraordinarily severe snow-storm caused snow and ice to accumulate on the roof
of the defendant’s premises. No steps were taken to remove the snow or to warn the
public of its presence. The plaintiff was standing on the highway outside the defendant’s
premises looking through the window of the defendants’ shop when she was injured by a
fall of snow. She claimed damages, alleging nuisance, or, alternatively, negligence. It was
held that as the defendants had done nothing to abate the nuisance they were liable both
in nuisance and in negligence and that the plea that the storms were an act of God was
no defence as it was the snow, and not the storms, which directly caused the injury. 133
Falling of slate from roof.—A slate fell from the roof of certain premises and injured the
plaintiff. It was found that the slate was loosened by blast from an enemy bomb but it
was not known to the occupier of the premises that it was so and on inspection of the
roof it did not appear that it had loosened. The cause of the fall was high wind. It was
held that the defendants were not liable for having continued a nuisance the existence of

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which they ought to have known. 134
Overhanging branch.—The defendants were the owners and occupiers of a farm
adjoining which there was a public road. On the farm and growing on the grass verge
near the road was an oak tree of considerable age one substantial branch of which was
going at right angles towards the road for about two feet before turning straight
upwards. The oak had grown before the defendants came to own and occupy the farm.
Neither the defendants nor the highway authorities nor the plaintiff’s driver who
frequently passed along the road had considered the branch to be a hazard. A lorry
belonging to the plaintiffs and carrying a high load of packing cases was being driven
along the road at night by the driver, who pulled in to his near side to allow another
lorry of the plaintiffs coming in the opposite direction to pass, with the result that the
load struck the overshadowing branch and one of the packing cases fell on the road. The
lorry coming in the opposite direction also sustained damages when trying to avoid the
packing case. It was held that the plaintiff’s claim failed as although the overshadowing
branch was a nuisance, the defendants could not be presumed to know of the nuisance
and could not be held liable for continuing it. 135
Liability of landlord.—Generally no action will lie against a landlord for any nuisance
existing on premises in occupation of a tenant. The action should be brought against the
tenant. 136
The landlord will be liable for nuisance (1) if he lets the premises in a ruinous
condition, provided that he knew of their condition, 137 (2) when it has been created
before the premises were let by him, 138 eg obstruction caused to the ancient lights of a
neighbour; (3) if he expressly or impliedly authorises his tenant to create or continue the

133. Slater v Worthington’s Cash Store, (1941) 1 KB 488.

134. Cushing v Peter Walker & Son, (1941) 2 All ER 693. Compare case in text and footnote 20, p 658, supra
and title 19.3.6 Chapter 19, p 561.
135. British Road Services Ltd v Slater, (1964) 1 All ER 816 : (1964) 1 WLR 498. Compare case in text and
footnote 20, p 658, supra and title 19.3.6 Chapter 19, p 561.
136. R v Pedley, (1834) 1 Ad & E 822; Rich v Basterfield, (1847) 4 CB 783; Pretty v Bickmore, (1873) LR 8
CP 401.
137. Todd v Flight, (1860) 9 CB (NS) 377.
138. Roswell v Prior, (1701) 12 Mod 635.
704 Law of Torts Chapter 20

nuisance; 139 (4) when the nuisance is due to a breach by him of the covenants of the
lease, 140 eg if he neglects to repair the premises; (5) if there is an ‘active’ or ‘direct’
participation in the act. 141
A landlord who lets an unfurnished house in a dangerous condition, he being under no
liability to keep it in repair, is not liable in the absence of express contract to his tenant, or to
a person using the premises, for personal injuries happening during the term, and due to the
defective state of the house.142 The only duty, which the landlord owes to the customers or
guests of the tenants is not to expose them to a concealed danger or trap. 143 If there is a
defect in the premises likely to cause injury, but known both to the landlord and the tenant,
the landlord is not responsible for injuries caused to the tenant. 144
The owner of a dilapidated house contracted with his tenant to repair it but failed to
do so. The tenant’s wife, who lived in the house and was well aware of the danger, was

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injured by an accident caused by the want of repair. It was held that the wife, being a
stranger to the contract, had no claim for damages against the owner. 145
The plaintiff was a tenant of defendant’s farms. The right of sporting and preserving
game was reserved to the landlord. The defendant had shooting rights over 4230 acres of
which 2326 were let to the plaintiff. During the season 1947-48 the defendant’s coverts
were filled with an inordinate number of wild pheasants which in their search for food
gravely damaged the plaintiff’s crops. In an action by the plaintiff it was held that the
presence of the large number of pheasants in the defendant’s coverts was not due to any
“unreasonable action” by the defendant but was due to exceptional weather conditions
prevailing in the summer of 1947; that the defendant was not under a legal obligation to
the plaintiff to reduce or disperse the pheasants. They were feroe naturea and the fact
that the plaintiff had no right to shoot them, did not impose any duty in law on the
defendant to shoot them himself. 146

20.10 Remedies
Nuisance in any form as recognized under law of torts, which results in affecting
anyone’s personal and/or property rights, gives to such a person cause of action to seek
remedial measures from court. 147 The remedies for private nuisances are (1) Abatement,
(2) Damages, and (3) Injunction.

139. Harris v James, (1876) 45 LJ QB 545.

140. Wilchick v Marks and Silverstone, (1934) 2 KB 56 : 78 SJ 277 : 50 TLR 281.
141. Lawrence v Covertry [2014] UKSC 46.
142. Lane v Cox, (1897) 1 QB 415; Cavalier v Pope, (1906) AC 428; Dobson v Horsley, (1915) 1 KB 634;
Shirvell v Hackwood Estates Company Limited, (1938) 2 KB 577; Davis v Foots, (1940) 1 KB 116.
143. Fairman v Perpetual Investment Building Society, (1923) AC 74 : 87 JP 21 : 39 TLR 54, overruling
Miller v Hancock, (1893) 2 QB 177.
144. Lucy v Bawden, (1914) 2 KB 318.
145. Cavalier v Pope, (1906) AC 428 : 95 LT 65 : 22 TLR 648. This decision is now reversed by the
Occupiers’ Liability Act, 1957.
146. Seligman v Dockers, (1949) Ch 53 : (1948) 2 All ER 887.
147. Balwant Singh v Commissioner of Police, (2015) 4 SCC 801; Bosh Ltd v The Bruhat Bangalore
Mahanagara Palike, ILR 2015 KAR 935; Sri Kamlesh Kumar v The Commissioner, Bruhat Bangalore
Mahanagara Palike, ILR 2014 KAR 6390: (2015) 2 Kant LJ 140: AIR 2015 (NOC 1266) 495.
Chapter 20 Nuisance 705

Abatement, that is removal of the nuisance by the party injured without recourse to
legal proceedings. The removal must be (i) peaceable, (ii) without danger to life or limb,
and (iii) if it is necessary to enter another’s land to abate the nuisance, or where the
nuisance is a dwelling-house in actual occupation on a common, after notice to remove
the same, unless it is unsafe to wait. No more damage may be done than is necessary. It
is lawful to remove a gate or barrier which obstructs a right of way but not to break or
deface it beyond what is necessary for the purpose of removing it. If a party who has a
right to a stone weir were to erect buttresses, one who should oppose the erection of the
buttresses could not justify demolishing the weir as well as the buttresses. 148 The abatement
of a nuisance by a private individual is a remedy which the law does not favour. 149 The
courts have confined the remedy by way of self redress to simple cases of overhanging branch
or an encroaching root, which would not justify the expense of legal proceedings; and urgent
cases which require an immediate remedy. 150 When the nuisance arises merely from

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omission on the part of the wrongdoer the law is not clear.
The owner of a particular land has no right to allow his trees to overhang on the lands
of his neighbour and he cannot acquire any right by prescription and the aggrieved
person can abate the nuisance. 151
Local Bodies like a municipality have generally statutory powers to abate a public
nuisance and when they unreasonably refuse to exercise these powers a petition under
Article 226 can be filed for directing them to exercise the statutory power for abating the
nuisance. 152

20.10.1 Notice
In the case of nuisances by an act of commission the injured party may abate them,
without notice to the person who committed them, as they are committed in defiance of
those whom such nuisances injure. In the case of nuisances by an act of omission notice
is necessary, except (a) where branches of trees overhanging on one’s property are to be
cut, and (b) where the security of lives and property requires a speedy remedy. 153

20.10.2 Tree overhanging another person’s boundary

If a tree overhangs the land of another person, then that person can lawfully cut the
overhanging branches even without giving notice, however long they may have overhung
his land. 154 A person cannot acquire as easement the right of projecting the branches of

148. Greenslade v Halliday, (1830) 6 Bing 379; Mayor of Colchester v Brooke, (1845) 7 QB 339.
149. Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co, (1927) AC 226 : 91 JP 46 : 136 LT 417.
A person who removed a dam erected to obstruct his right of way was convicted of mischief under
section 426 of the Indian Penal Code: Emperor v Zipru, (1927) 29 Bom LR 484, 51 Bom 487.
150. Burton v Winters, (1993) 3 All ER 847 (CA), pp 851, 852 : (1993) 1 WLR 1077.
151. Sheik Batcha Rowther v Alagappan, (1958) MWN 313 : (1958) 2 MLJ 157.
152. Anil Krishna Pal v State of West Bengal, AIR 1989 Cal 102.
153. The Earl of Lonsdale v Nelson, (1823) 2 B & C 302; Jones v Williams, (1843) 11 M & W 176; Lagan
Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co, (1927) AC 226 : 91 JP 46 : 136 LT 417.
154. Norrice v Baker, (1613) Roll R 393; Lemmon v Webb, (1895) AC 1 : 11 TLR 81; Hari Krishna Joshi
v Shankar Vithal, (1894) ILR 19 Bom 420; Arumugha Goundan v Rangaswami Goundan, (1938) 47
MLW 324. An injunction was granted to restrain defendants from obstructing plaintiff to cut off the
[Footnote No. 154 Contd.]
706 Law of Torts Chapter 20

trees growing on his land over the land of another person. 155 But the right to lop the
branches does not carry with it the right to pick and appropriate the fruit that grows on
it. If a person appropriates the fruit he will be guilty of conversion. 156 A person cannot
cut off the overhanging branches of a tree standing partly on his own land and partly on
the land of his neighbour who is entitled to its fruits. 157
20.10.3 Damages
The principle to be applied in cases of nuisance is not whether the defendant is using
his own property reasonably or otherwise, but whether he injures his neighbour. 158 The
measure of damage is the diminution in value of the property in consequence of the
nuisance. The plaintiff must prove some special damage. Where the proximity of a
nuisance is one of the main reasons, though not the whole reason, for a house becoming
unlettable, the damages will be the amount of loss in monthly rental value due to the

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nuisance. 159
In cases of continuing nuisance, the court cannot lawfully give damages in respect of any
injury subsequent to the day of the commencement of the action, for every day that the
nuisance continues there is a fresh cause of action in respect of which further damages are
recoverable. But if substantial damages are once given and a fresh action is brought for the
continuance of the nuisance, exemplary damages may be given to compel abatement. 160
Special damage is that damage which by reason of a nuisance would be suffered by
some individual beyond what is suffered by him in common with other persons affected
by that nuisance. 161
20.10.4 Injunction
In order to obtain an injunction it must be shown that the injury complained of as
present or impending is such as by reason of its gravity, or its permanent character, or

[Footnote No. 154 Contd.]

branches of a tree which was regarded as an object of veneration by Hindus: Behari Lal v Ghisa Lal,
(1902) ILR 24 All 499. It is open to the Court to grant a mandatory injunction for the removal of
such nuisance : Lakshmi Narain Banerjee v Tara Prosanna Banerjee, (1904) ILR 31 Cal 944; Vishnu v
Vasudeo, (1918) 20 Bom LR 826; ILR 43 Bom 164. The fact that the party complaining has merely
a leasehold and not a freehold would not in any manner alter the case : Maung Po Thaung v Mg. Gyi,
(1923) ILR 1 Ran 281. See Smith v Giddy, (1904) 2 KB 448 : 20 TLR 596, where an adjoining
landowner was held liable for allowing his trees to overhang his boundary to the damage of the
plaintiff’s crops. See Crowhurst v Amersham Burial Board, (1878) 4 Ex D 5.
155. Keshav v Shankar, (1925) 27 Bom LR 663. Where a person sold a portion of his land with a tree on it,
the branches of which overhung on the remaining land of vendor, and the vendor wanted to cut off the
overhanging branches, it was held that as the vendor had not expressly reserved to himself a right to cut
off the branches, the right to project the branches must be deemed to have been transferred by common
intention of the parties; Arumugha Goundan v Rangaswami Goundan, (1938) 47 MLW 324.
156. Mills v Broker, (1919) 1 KB 555 : 121 LT 254 : 35 TLR 261.
157. Someshvar v Chunilal, (1919) 22 Bom LR 790, ILR 44 Bom 605.
158. Reinhardt v Mentasti, (1889) 42 Ch D 685, 690.
159. SA Basil v Corporation of Calcutta, ILR (1940) 2 Cal 131.
160. Battishill v Reed, (1856) 18 CB 696; Galstaun v Doonia Lal Seal, (1905) ILR 32 Cal 697.
161. Khirsingh v Brijlal, ILR 1949 Nag 94.
Chapter 20 Nuisance 707

both, cannot be adequately compensated in damages. If the injury is continuous the

court will not refuse an injunction because the actual damage arising from it is slight. 162
The normal remedy in case of continuing nuisance is injunction which cannot be
lightly denied and damages granted in lieu thereof. The principles bearing upon this
question were laid down in Shelfer v City of London Electric Lighting Co, 163 which is still
regarded as a good law on this subject. The case of Shelfer was a case of nuisance in the
form of noise and vibrations but the principles laid down therein are generally applicable
to any case of continuing nuisance. The principles were culled out from Shelfer in Regan
v Paul Properties, 164 which was a case of continuing nuisance arising from obstruction of
light. These principles are:
(i) A claimant is prima facie entitled to an injunction against a person
committing a wrongful act, such as continuing nuisance, which invades the

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claimant's legal right.
(ii) The wrongdoer is not entitled to ask the court to sanction his wrongdoing
by purchasing the claimant's rights on payment of damages assessed by the
court.
(iii) The court has jurisdiction to award damages instead of an injunction, even in
cases of a continuing nuisance; but the jurisdiction does not mean that the
court is ‘a tribunal for legalizing wrongful acts’ by a defendant, who is able and
willing to pay damages.
(iv) The judicial discretion to award damages in lieu should pay attention to well-
settled principles and should not be exercised to deprive a claimant of his
prima facie right ‘except under very exceptional circumstances’.
(v) Although it is not possible to specify all the circumstances relevant to the
exercise of the discretion or to lay down rules for its exercise, the judgments
indicated that it was relevant to consider the following factors: whether the
injury to the claimant's legal rights was small; whether the injury could be
estimated in money; whether it could be adequately compensated by a small
money payment; whether it would be oppressive to the defendant to grant an
injunction; whether the claimant had shown that he only wanted money;
whether the conduct of the claimant rendered it unjust to give him more than
pecuniary relief; and whether there were any other circumstances which
justified the refusal of an injunction.
No mandatory injunction against a private individual for what is a mere nuisance in
law will be granted except where it has been created and persisted in defiance of local

162. Att-Gen. v Sheffield Gas Consumers Co., (1853) 3 De G M & G 304; Att-Genl. v Cambridge Consumer
Gas Co, (1868) LR 4 Ch 71; Wood v Conway Corporation, (1914) 2 Ch 47; Kuldip Singh v Subhash
Chander Jain, AIR 2000 SC 1410, p 1413 : (2000) 4 SCC 50 (22nd Ednof this book (pp 522-524) is
referred). For the form of permanent injunction in a case of nuisance by noise in running a machine, see
Veerabhadrappa v Nagamma, AIR 1988 Knt 217.
163. Shelfer v City of London Electric Lighting Co, (1895) 1 chapter287 (CA).
164. Regan v Paul Properties, (2007) 4 All ER 48 (CA).
708 Law of Torts Chapter 20

authority and that local authority has no sufficient power to enforce compliance with
the law. 165
An injunction to prevent an apprehended or future nuisance will generally not be
granted unless the threat be imminent or likely to cause such damage as would be
irreparable once it is allowed to occur. 166 Another category of future nuisance may be
when the likely act of the defendant is inherently dangerous or injurious such as digging
a ditch across a highway or in the vicinity of a children’s school or opening a shop
dealing with highly inflammable products in the midst of a residential locality. 167
Dealing with a suit seeking a Quia Timet injunction against setting up of a solid waste
disposal project, Supreme Court held that injunction could not have been granted in
light of Section 41(f) of the Specific Relief Act, 1963. 168

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20.11 Burden of Proof
In an action for a public nuisance, once the nuisance is proved and the defendant is
shown to have caused it, then the legal burden is shifted on to the defendant to justify or
excuse himself. If he fails to do so, he is held liable, whereas in an action for negligence
the legal burden in most cases remains throughout on the plaintiff. 169 Similar is the
position in case of private nuisance, once a claimant has proved that a nuisance has
emanated from the defendant’s land, the onus shifts to the defendant to show that he
has a defence to the claim, whether this be absence of negligence in a case of statutory
authority or that he took all reasonable steps to prevent the nuisance. 170

165. Advocate General v Haji Ismail Hasham, (1909) 12 Bom LR 274.

166. Kuldip Singh v Subhash Chander Jain, AIR 2000 SC 1410, p 1413 : (2000) 4 SCC 50.
167. Kuldip Singh v Subhash Chander Jain, AIR 2000 SC 1410, p 1413 : (2000) 4 SCC 50.
168. Ratnagiri Nagar Parishad v Gangaram Narayan Ambekar, (2020) 7 SCC 275.
169. Southport Corp. v Esso Petroleum Co Ltd, (1954) 2 All ER 561, p 571 (CA); Marcie v Thomes Water
Utilities Ltd, (2002) 2 All ER 55, p 73 (CA).
170. Marcie v Thomes Water Utilities Ltd, supra, p 79 (Lord Phillips MR).