In 1860, Mr Tipping purchased land in Lancaster, and in September of the same year, a smelting company was started a mile and a half from his premises. The noxious fumes from this company injured the trees and shrubs in the premises of Mr Tipping and rendered his cattle unhealthy, whereby he was unable to use his land in a beneficial manner. So Mr Tipping took the case to the Court and it was held, in what is more commonly known as St Helen’s Smelting co v. Tipping[(1865) 11 H.L.C. 642], that there was nuisance insofar as the activities in the smelting company interfered with the use and enjoyment of Mr Tipping of his land.

This case is a good example of the tort of nuisance. The word ‘tort’ literally means what is ‘crooked’ but in the legal sense it is used to denote a civil wrong (as opposed to a criminal wrong). Nuisance could be public nuisance or private nuisance. Public nuisance is generally dealt with by criminal laws, whereas law of torts deals with private nuisance. Nuisance is one of the oldest causes of action in common law. Private nuisance is unreasonable interference with use and enjoyment of one’s land that is to say that the law recognizes the right of a land owner or person in rightful possession of the land of reasonable comfort and convenience in the occupation of the land. For example, if your neighbour has a dog which barks all night and keeps you awake, hence inconveniencing you, it will amount to private nuisance, subject, of course to the rest of the legal requisites. Nuisance generally connotes a continuous state of affairs, except in certain cases like in the case of Dollman v. Hillman Ltd[(1941) 1 All E.R. 355], in which the plaintiff slipped on a piece of fat lying outside the plaintiff’s butcher shop; and though this was an isolated act, the defendant was held liable for nuisance.

There are certain requirements which need to be fulfilled in order for an act to constitute nuisance. The interference has to be

• With the use and enjoyment of land
• Unreasonable by nature
• Causing damage to the plaintiff.

The interference may be direct or indirect by means of smoke, smell, noise, vibrations, gas, branches etc. It may cause injury to the property or to the comfort or health of the occupants of certain property. For instance, in the case of Polsue and Alfiery Ltd. v. Rushmere, the plaintiff, who was living in a noisy locality, brought an action against the defendant to prevent the defendant from installing a printing machinery next door due to which the plaintiff and his family had to remain awake at night. This was held to be nuisance by the Court and the installation of the machinery was prevented.

But if one is a sensitive plaintiff, the action will not be successful. A sensitive plaintiff is one who is affected by a certain situation in more grave a manner than a normal reasonable person would be. Another aspect of sensitivity of plaintiff would be sensitivity of property or type of trade carried on by a person, for example growing rare orchids which require special conditions for growth is a sensitive trade.

There are also certain defences that the defendant can take, which would be fatal to the case of the plaintiff.

• Prescription – This basically means that the right to do some act which would otherwise be nuisance may be acquired by prescription. In simpler words, it means “Why didn’t you do something about it before now?” If a person has continued with an activity which would be called nuisance for at least 20 years, he/she acquires a prescriptive right to continue with the same in the future also.
• Statutory Authority – An act done by the authority of a law passed by the legislature cannot be held to be nuisance as long as all due care and skill has been taken to avoid it.

That the nuisance was caused due to the acts of others, or that it was for some public good, or reasonable care was taken to avoid it or saying that the plaintiff himself/herself came to the place where nuisance was being caused are ineffectual defences.

In a nutshell, the law says that you have a right to use and enjoy your land in a reasonable manner. The tort of nuisance is generally recognized as a principle of common law (which has been developed through decisions of courts rather than a codified legislation) for which one may claim damages or injunction (order for ceasing and desisting from an act) against an act which would unreasonably interfere with one’s use and enjoyment of one’s property.

Useful Resources:

Private Nuisance

Nuisance definition

General Principles of Nuisance