According to jurist Salmond, the law consists of rules recognized and acted on by the courts of justice. India is one such example where most of the laws are codified in nature. But one such law, which isn’t encrypted is the law of ‘Torts’. ‘Torts’ are civil wrongs that the injured party can seek legal redressal for. A person whose rights have been infringed in scope of any wrongful act done by the other person is said to have committed tort. This is an act which need not satisfy obligation or duty towards a person but bears legal injury in form of violation of rights or interest of another person. Tort are civil in nature. One such act of tort is ‘nuisance’. Nuisance is derived from the French word ‘nuire’ which basically means to annoy or to hurt. A person in possession of his property has infinite rights to enjoy the property as he wishes. But when enjoyment of such property is inferred to be unreasonable or improper then the person is liable under the law of torts for committing nuisance.
According to Salmond, anything done in causing or allowance without lawful justification the escape of any deleterious thing whilst the full utilisation of the land in possession of the plaintiff.
What Amounts to Nuisance?
Nuisance is cause of any unreasonableness arising in behalf of one person. Every person has reasonable rights to enjoy the utilization of the land in his possession. In this vase the rights are infinite. The person can exploit the land in any manner under lawful consciousness. Until there is any situation arising whereby the person in course of enjoyment does anything that would restrict the others to use their rights. Anything amounts to nuisance that may curb another’s right or stop him in any unconditional method of using his will over possessory rights. A case of nuisance may be confused with a case of trespass. Trespass is only a direct interference in a person’s property without his knowledge or consent. While in the case of nuisance the person himself infringes another’s rights in the due process of exercising his own. Trespass is actionable while nuisance is only actionable with valid proofs.
This wrong is of two types such as; ‘private nuisance’ and ‘public nuisance’. Private nuisance is when any action any such action is executed against an individual, while a public nuisance is a situation where the rights of public at large is restricted.
Ingredients for Nuisance
The very essentials of committing nuisance amounts to actionable per se should qualify basic grounds. Wrongful acts and damage or loss or inconvenience constitute to be grounds for making nuisance actionable. If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct, then no nuisance is committed. An individual’s right is given more priority than the public benefit. So in any case, a public at large may be accused for nuisance where by one does any act that restricts a single person’s rights and obligations. An act or illegal omission of any act, that causes a common injury, danger, or annoyance to anyone can constitute nuisance. The main elements are illegal omission of any obligation, danger or annoyance to in common, it could take place to people at large or any individual and most important of all should cause injury, obstruction to the person who may have occasion to use public rights. The actions made should be unreasonable in nature as well. The factors also include extent and duration of disturbance, nature of the harm, social value of plaintiff’s use of property, burden to plaintiff in preventing the harm, feasibility etc.
To establish liability under nuisance, interference with plaintiff’s interest must be substantial. It is quite straightforward in case of direct physical condition of interference. On occasions of personal inconvenience, discomfort or annoyance, it is very difficult to predict. To determine whether an interference is substantial, courts apply the standard of an ordinary prudence under normal sensitivity. Although a plaintiff cannot, by putting his land to a usually sensitive use would amount to nuisance under any act that is harmless. If the interference is substantial against the plaintiff, there must be the essence of unreasonableness. This is a balance process that in interest of both parties where unreasonableness is ground for compensation.
Defense for Nuisance
A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law. Prescription is a special defence. To establish a Peron’s right by prescription, the use of property should be done openly and peacefully. The person should be aware about the identity of the property which he enjoys publicly.
- Statutory Authority
When a statutory authorises the doing of a certain act or use of land or property, then the remedies are taken away under reasonable precautions. The statutory authority maybe absolute or conditional.
Remedies for Nuisance
An injunction is a judicial order which entails restraining any person from doing or continue to do an act which might be a threat or curb someone’s legal rights. The order of injunction may be temporary or permanent in nature. This order stops any person who illegally tries to create any sense of act that may or curbs the rights.
Abetment of nuisance accounts for the removal of nuisance by the party who has suffered, without legal proceedings. This remedy is available only under certain conditions. This privilege is exercised under reasonable time and usually requires notice to the defendant and his failure to act. If reasonable measures go out of hand, plaintiff will be liable for his actions.
The damages may be offered in terms of compensations that amounts to nominal damages. The damages that may be paid are decided upon by the authority with a purview of not only for compensation but to make the accused deter from repeating the same.
The concept of nuisance arises out of everyday issue. The causes are innumerable. In defence, the affected person also may take reasonable steps even by himself which are reasonable and not unnecessary. The principle of civil law in tort may not be codified but is actionable per se. The common law theory has helped to develop the concept of nuisance all together. The everyday issues and petty offences which curb rights of individual are protected under law of tort. Nuisance may constitute to strict liability as well. The person is absolutely liable for the actions without any exceptions and compensate everyone if necessary.