Principles forming tort of nuisance.

 PRELIMINARY

A person possessing a property or assent is entitled to its undisturbed enjoyment as per law. However, if someone improperly use property of another, without permission of the owner, or that person cause disturbance to land of another in a way which interferes rights of owner, we can say that the tort of nuisance has occurred.  The word “nuisance” derived from the French word “nuire” which means “to hart, or to cause harm, or to annoy”. “nocere” is a Latin word for nuisance which means “to cause harm”. Nuisance is an injury to the right of person's possession of his property or injury to the rights of public. Nuisance is of two kinds, private and public nuisance;

Private nuisance is simply violation of one's use of quit enjoyment of land, or of some right over or in connection with it. Private nuisance can be caused by creating annoying smells, sounds, vibration, foul odor, threat of injury, pollution or any harmful activity which affects neighbor’s rights on enjoyment of his land. A level of interference must be of serious harm or annoyance to be treated as a nuisance, normal activities which are expected to be carried within residential areas cannot amount to nuisance. In the case of Hunter v. Canary wharf , Lord Llyoid stated that, private nuisances are of three kinds. They are nuisance by encroachment on a neighbor’s land, nuisance by physical injury to a neighbor’s land, and nuisance by interference with a neighbor’s quiet enjoyment of his land.

In Miller v. Jacksom , the plaintiff lived near a cricket ground, and their garden was only 100 feet away from the nearest batting crease. By being close to the cricket grounds, several cricket balls were hit onto their property, causing damage to property and constituting a risk to the plaintiff. Whilst the cricket ground attempted to take several measures to prevent cricket balls from hitting plaintiff's property, cricket balls continued to be hit into the housing estate where the plaintiff lived. The plaintiff sued cricket ground and he was seeking injunction against annoying activities conducted within ground. The court of law ruled in favor of plaintiff, the cricket balls risk constituted nuisance. 

In Bamford v Turnley  defendant burnt bricks in kiln for construction activities which caused noxious fumes and smokes to the community, Bamford sued to prevent the nuisance. At trial it was held that the brick smoke was reasonable because the defendant had only been using the kiln in order to build homes which was public interests . During an appeal, the court held that, the public gain and the loss of the individual must be balanced, the bricks burning activities caused nuisance to the public though that the construction was for public benefits.

Public nuisance is an act which affects reasonable comfort and convenience of life of class of Her Majesty’s subjects, see Attorney General v PYA Quarries Ltd . Public nuisance is that one which affects not an individual but the entire community, public nuisance is both a criminal offence and tort, an attorney general can sue in public nuisance on behalf of civilians who are being disturbed by careless activities causing nuisance to them . Likewise an individual who suffers nuisance suffered by the entire public, may maintain action in public nuisance. Public nuisance can be caused by obstructing public service like roads, powers system, water supply system etc

Attorney General v Gastonia Coaches Ltd , the defendant was charged for careless overnight parking in the street of coaches, his action blocked road and created a foreseeable danger to the public. Like wise in R v Russell , the defendant left wagons parked on the street for several hours for the purpose of loading and unloading cargo and this was held to be a public nuisance. In Dymond v Pearce a defendant without any precaution, parked a lorry carelessly without lights on, This was concluded by court as a nuisance although the plaintiff did not succeed as the nuisance was not the cause of his injury. 

In Mint v. Good ,  the plaintiff was hart by a wall collapsed from defendant’s house, the wall separated the highway from the forecourt of a house owned by the defendant. The house was let on a weekly basis tenancy. No right to access the premises expressly reserved to the owner . The judge found that the wall was a nuisance, but dismissed the claim to its entirety against the owner because he had not specifically reserved the right to enter the premises. Public nuisance is an offence which interferes general rights of public and the affected civilians may sue on their own against a person caused nuisance, or they may sue through an attorney general who is given powers to sue on behalf of the public. A public nuisance is a serious crime if an offender committed it intentional knowing that the public will suffer a serious harm upon his actions.

PRINCIPLES FORMING TORT OF NUISANCE

Degree of interference. In determining nuisance, degree of interference must be relied upon. Some activities which cause disturbance which are expected to be carried out in residential areas cannot be termed as nuisance, nuisance must go far more to cause harm, damage and material annoyance to the private person or community. In public nuisance, a claimant is required to prove enough the spread of nuisance to the community as it was established in Attorney General v Hastings Corporation .

In Halsey v Esso Petroleum Co Ltd , the plaintiff (Halsey) was living down the road from an Esso Petroleum oil factory. The factory was producing emissions which caused offensive smell, and that the acidic residue from the factory’s smoke damaged his car’s paint. The factory also produced a lot of noise from the trucks constantly moving about in the area which kept Halsey up all night. Halsey filed a suit seeking injunction against destructive activities conducted by the factory, the court of law ruled in favor of the plaintiff, the injunction was granted at night to prevent the noise from affecting the neighborhood comfort, Veale J in this case determined that the factory could operate without causing unnecessary nuisance to the community. 

Possession interests on land or property. A person claiming his rights being interfered by another must prove before complaint adjudicating authority that he has a rightful possession of land or property which he claims being interfered. A tort of nuisance is made over several principles include a principle of possession of interest on land or property, a person who has no right over the land cannot claim being annoyed by another.

In Newcastle-under-Lyme Corporation v. Wolstanton Ltd  , Evershed J stated that, “since the tort of nuisance is a tort directed against the plaintiff's enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the land in question, or even as a licensee with exclusive possession of the land”.

This principle goes together with a principle of “locus standi”, a person to sue must have legal authority to sue, likewise for a plaintiff to institute suit against nuisance, he/she must prove before court the actual possession of land or property he claims being interfered.

Substantial and unreasonable interference. substantial interference is offensive, inconvenient, or annoying to a reasonable person. The court of law will consider factors like financial loss, physical change in the property or serious damage, and if the harm is continuous and ongoing. Substantial interference goes far more to include cases involving nauseating fumes from an oil refinery , an overly large and intentionally obstructing fence between properties, and a loud air conditioning unit ( see. Estancias Dallas Corporation v. Schultz ) , have all been found to be substantial interference amounting to nuisance.

Un-reasonable interference can be determined under the two approaches established by the court of law, An activity is unreasonable based on the character of the community where action takes place and the suitability of the activity to that neighborhood.  This approach developed when a group of farmers sued a nearby coal burning electric factory for emitting sulfur which eventually affected the farmer's crops. The court of law observed that, since the factory was emitting sulfur, it was inevitable for formers to suffer damage to crops, The court held that, burning coal is not a suitable activity to be conducted near farm country and it would not be reasonable to allow the farmers to suffer the harms without compensation. Hence the farmer’s were entitled right to compensation because they suffered a continuous substantial interference caused by defendant.

In Sturges v Bridgman , a claimant who was a doctor, sued a confectioner who was his neighbor. A doctor claimed that, an activity of grinding ingredients by pestle and mortar caused annoying noises which interfered his right of enjoyment on his land. The court of law agreed that there was a nuisance, and the fact that the doctor had ‘moved to the nuisance’ was no defense to the nuisance itself.  Nor was there an easement acquired by the confectioner through long usage that entitled him to continue with his actions. The court went for to explain that, tort of nuisance can be determined depending on the environment, not all annoying activities can be referred to as nuisance, the circumstances and environment are key points to consider in determining nuisance. 

Seeable damage. A plaintiff to sue successful in tort of nuisance must be able to prove before the court the damages he personally suffered as an individual. Damage to property, economic loss, and physical dis-comfort are among sample damages that can support claims by plaintiff.

In Rose v. Miles , the defendant unlawful obstructed a public shared navigable creek which obstructed the plaintiff from transporting goods through water. Later a plaintiff decided to ship his goods through land which increased expenses of operating a business. It was held that, the defendant caused public nuisance by obstructing the water passage hence caused economic loss to the plaintiff, and since plaintiff successful proved the loss incurred, he had a right to claim damages. 

Physical dis-comfort. This is the interference with comfort of plaintiff on a right of enjoyment of the his land without disturbance, this is the actual destruction of land by dumping chemicals which endanger health of residents, the dis-comfort should be of such a degree that it would affect an individual in the locality and people would not be able to put up or tolerate with the enjoyment.

In Radhey Shyam v. Gur Prasad , a plaintiff in this suit sued to seek permanent injunction  against defendant from installing and running a flour mill and from running and continuing to run an oil expeller plant. A plaintiff claimed to be annoyed by the noise of the factory further more he was suffering from sickness caused by the same factory. It was held that by running a flour mill in a residential area, the defendant was causing a nuisance to the plaintiff and affecting his health severely. 

CONCLUSION

Statutory nuisance is a nuisance which goes further more to cause health problems to individuals, these are nuisance which are clearly defined and mentioned by a statute to be a nuisance and provided with punishment. Statutory nuisance can be ash, smokes or fumes emitted from machines, factories and cars, it can also be odour, dust and chemical streams from industries, it can be noise it light coming from factory, machine or vehicles  etc

Section 170(1) of Penal Code  provides a best example of statutory provision which prohibits nuisance, the section provides that, “Any person who does an act not authorised by law or omits to discharge a legal duty and thereby causes any common injury or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights commits the offence termed a “common nuisance”, and is liable to imprisonment for one year.”

REFERENCES

Books

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing

Juma I.H. (2007), Learning materials: Law of Tort, DUP

Lewthwaite, J. (2004), Tort Law, Oxford University Press, New York

Restatement (Second) of Torts (1979)

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London

Journal Articles:

Elvin, J. The Law of Nuisance and the Human Rights Act, in Cambridge Law Journal: Cambridge University Press, Vol. 62, No. 3 (Nov., 2003), pp. 546-548

Gevurtz, F., Obstruction of Sunlight as a Private Nuisance, in California Law Review: California Law Review, Inc., Vol. 65, No. 1 (Jan., 1977), pp. 94-119

Useful Web Links:

https://blog.ipleaders.in/the-tort-of-nuisance/ (Accessed June 27 2021)

https://www.eden.gov.uk/your-environment/statutory-nuisance/what-is-statutory-nuisance/ ( Accessed June 27 2021)