COMPARE AND CONTRAST THE TRAITS OF PRIVATE

NUISANCE AND TRESPASS TO LAND.

a. DEFINITIONS

1. Private Nuisances
A private nuisance is a civil wrong that affects a single individual or a definite number of
persons in the enjoyment of some private right which is not common to the public.
In other words, a private nuisance is a substantial and unreasonable interference with the
private use and enjoyment of one’s land.
Examples include interference with the physical condition of the land, disturbing the
comfort of its occupants, or threatening future injury or disturbance. The origin of private
nuisance liability is purely tortious in character and not criminal.

It is to be noted that a private nuisance exists only where one is injured in relation to a
right that she/he enjoys by reason of his/her ownership of an interest in land. Private
nuisance includes all injuries to an owner or occupier in the enjoyment of the property of
which he is in possession, without regard to the quality of the tenure.

Explanation
The plaintiff was the owner of a house and park which adjoined the defendant’s premises
was 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 extent that the tops of
some of the trees were dying whilst others were dead. The plaintiff was entitled to
an injunction restraining the defendantsfrom carrying on their works so as to cause
injuryto the plaintiff’s property.

2. Trespass to land
General
Trespass to land occurs where a person directly enters upon another's land without
permission, or remains upon the land, or places or projects any object upon the land.

According to Ratanlal
"It is an unwarrantable entry upon the land of another or any direct or immediate act of
interference with the possession of land”.

According to Case Law:

Entick v Carrington 1765
In this case Lord Camden has defined trespass to land as
“No man can set his foot upon my ground without my license but he is liable to an action
though the damage be nothing.

Explanation
Trespass to land is a continuing wrongwhich lasts so long as the injury to the land
continuesand gives rise to action“de die in diem”i.e. from day to day, so long as it lasts.
Trespass to land occurs where a person directly enters upon another's land without
permission, or remains upon the land, or places or projects any object upon the land.

b. ELEMENTS

1.Elements of nuisance
The claimant must prove three elements:

1. An indirect interference with the enjoyment of the land

2.That the interference was unreasonable
3.That this interference caused damage to the claimant

2. Elements of trespass to land

A person is subject to liability for trespass to real property for intentionally entering
another’s land. The elements of trespass to real property are:

1.possession by the plaintiff at the time of trespass;

2. unauthorized entry by the defendant; and
3. damage to the plaintiff from the trespass

c. TO PROVE DAMAGES

1. Private nuisance
Nuisance is an indirect interference with another's use and enjoyment of land, and
normally requires proof of damage to be actionable.

2. Trespass To Land
This tort is actionable per se without the need to prove damage.
Example:
A public road is to be used only for passage. A person using it for other
purposes commits trespass. Similarly, staring in at other’s window affects the right of
privacy, thus amounts to trespass.

d. OBJECT TO CAUSE
1. Private Nuisance
It is created by some intangible objects such as gas, noise, smell, smoke, pollution,
vibrations, electricity, etc
Christie v Davey (1893)
Facts:
The claimant was a music teacher. She gave private lessons at her home and her
family also enjoyed playing music. She lived in a semi-detached house which
adjoined the defendant’s property. The defendant had complained of the noise on many
occasions to no avail. He took to banging on the walls and beating trays and shouting in
retaliation.
Held:
The defendant’s actions were motivated by malice and therefore did constitute a
nuisance. An injunction was granted to restrain his actions.

2. Trespass to land
It is always by some material or tangible objects
Basely v Clarkson (1681)
D owned land adjoining C’s and whilst mowing his own lawn he involuntarily and by
mistake mowed (Cut with a blade or mower) down some grass on the C’s land. C was
successful in claiming against trespass. This case is also an example of mistaken entry.

e. INTERFERENCE TO PROPERTY

1. Private Nuisance
Nuisance is an indirect interference with the plaintiffs property.

Bland -v-Moseley (1587)

The court distinguished the elements of an easement of light. In the absence of
an easement, a building may be erected so as to restrict the flow of air onto his
neighbour's land.The case established that blocking a neighbour’s pleasant view could not
be considered a nuisance.

2. Trespass To Land
Trespass is a direct interference with the plaintiffs property.

Basely v Clarkson (1681)

While moving his grass, the owner of land accidentally mowed some grass on his
neighbour’s land

f. INTEREFRENCE WITH:-
1. Private Nuisance
It interferes the plaintiffs use or enjoyment of land or property.

Thompson-Schwab v Costaki [1956]

The where the sight of prostitutes and their clients entering and leaving neighbouring
premises were held to amount to an actionable nuisance as the activity was considered
offensive in itself. There was no need to demonstrate that the activities were noisy.

2. Trespass to land
It interferes with possession of the land or property of plaintiff

Anchor Brewhouse Developments Ltd v Berkeley House (1987),

the boom of Berkeley’s crane over sailed Anchor Brewhouse’s land and was held
to constitute a trespass. It is not necessary to show damage to obtain an injunction for
trespass. Anchor Brewhouse succeeded in obtaining the injunction they were looking for
as the Court found no “special circumstances” to prevent the injunction

g. ILLUSTRATIONS

1. Private Nuisance
A’s building has become ruinous, and it may collapse at any time and fall upon B’s house.
A and B notice it. But A does not take proper steps to prevent it. Some of the walls of A’s
house fell upon on B’s house. It is a nuisance.

2. Trespass to Land
A occupies B’s land forcibly and plants trees. It is a trespass.
A throws some stones upon his neighbor B’s house. It is a trespass

h. DEFENCES

1. Private Nuisance
Just as the law permits an injured party to bring a lawsuit to stop a nuisance, the law
provides land owners and users with certain defenses–legally permitted excuses–to avoid
liability for nuisance claims.

A. Grant
If the terms of the grant cover the act in question, it will be a good defence
B. Prescription
Prescription is a special defence available in regard to nuisance. As a result of
prescription one gets a right to continue a private nuisance and this right is an
easement by 20 years of enjoyment.
Sturges v Bridgman [1879]
Facts:
The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had
done so for over 20 years but had no neighbouring property so there were no complaints
as to its use. The claimant then built a consulting room for his practice as a physician
adjacent to the defendant’s noisy shop. The claimant brought an action in nuisance to
obtain an injunction to prevent the continuance of the noise. The defendant, relying on
the Prescription Act, argued that he had obtained the right to be noisy by operating the
noisy pestle for over twenty years.
Held:
The use of land prior to the construction of the consulting room was not
preventable or actionable and therefore it was not capable of founding a prescription
right.

C. Statutory authority
Where a statute orders something to be done, and doing that thing inevitably creates a
nuisance, there will be no liability because the statute is treated as having authorised the
nuisance.
Allen v Gulf Oil Refinery [1981]
Facts:
The claimant brought an action in nuisance for the smell, noise and vibration
created by an oil refinery which had been constructed by the defendant on their
land. The defendant’s action in constructing the oil refinery was authorised by an Act of
Parliament.
Held:
The defendant was not liable as it had a defence of statutory authority.

D. Contributory Negligence
a legal concept which reduces the defendant’s liability (in part, or sometimes altogether)
when the plaintiff was also negligent and the plaintiff’s own negligence contributed to the
injury he or she suffered.

If a plaintiff claims damages based on a type of nuisance which was created through the
negligent act or omission of the defendant, the issue of comparative negligence may–but
does not always–arise. In order to reduce liability through comparative negligence, the
defendant must prove that

The plaintiff was also negligent; and

The plaintiff’s negligence was a substantial factor in causing the injury the plaintiff
suffered.

E. Act of God
If any conduct or act, due to the act of God causes nuisance, then it will be a valid
defence

2. Trespass To Land

A. Leave and license

This is a permission which makes lawfulthat which would otherwise be unlawful. Thus,
a person who enters the land by way of licence will not be a trespasser. However, if that
person remains on the land after the licence has expired, or has been revoked, or he
exceeds the conditions of the licence, that person will become a trespasse

B. Consent
A person or claimant who agrees to a certain action cannot complain or sue.
PETERS V PRINCE OF WALES THEATER LTD

The defendant employed a sprinkler system to protect the building from fire. The
claimant also occupied the building and complained when she stock was damaged by
water from the sprinklers.
It was held that the water supply benefited both the claimant and defendant and therefore
there was no liability.

C. Act of public Necessity

Entry on the land of another person, without his consent, is justifiable on the
ground of public necessity. A person is not guilty of trespass if he goes onto
another's land to protect life or property during an emergency.
For example, a passerby who sees someone pointing a gun at another person may
cross onto the property and subdue the person with the gun. Someone at the
scene of a traffic accident may go onto private property to pull a victim from one of the
vehicles.

D. Recaption
If a person takes away the goods of anotherupon his on land, he gives to the
 owner of them an employed license to enter for the purpose of recaption.
Similarly if the goods are on the land of another in the pursuance of a felonious
(Involving, being or having the nature of a crime) act of a third person, the entry will be
justifiable.

i. REMEDIES

1. Private Nuisance
Three remedies are possible when it comes to nuisance: injunctions, damages and
abatement.

An injunction is an order to stop the nuisance.

Damages is obviously money paid by the defendant to the claimant and

abatement allows the claimant to directly end the nuisance, such as trimming back a
hedge

2. Trespass To Land
Remedies include:

Damages which will be nominal if there is only slight harm to land.

An injunction to prevent further acts of trespass at the discretion of the court.

An action for the recovery of land if a person has been deprived of lawful possession of
the land formerly known as ejectment.

j. CASE LAWS

1. Private Nuisance
Rylands V Fletcher
The rule in Rylands v Fletcher imposes liability when something that is likely to cause
mischief escapes from the defendant's land onto the plaintiff's land, causing damage to
the plaintiff. This itself may give rise to an action for nuisance but not essentially
so. In an action for nuisance, commonly the interference must be something that is
constant but in the rule of Rylands v Fletcher, one single act of interference is adequate.
2. Trespass to land
Anchor Brewhouse Developments v Berkley House Ltd
The defendant’s crane over sailed on to the claimant’s airspace above their land on a
regular basis during the construction of a housing development. No damage was caused.
The claimant was entitled to an injunction to prevent the trespass since trespass is
actionable per se.

EPILOGUE
The major difference between nuisance and a trespass to land is the interest being
interfered with. In nuisance, a person is interfering with a current possessor's use
and enjoyment of the property. Whereas, in trespass to land, the person is
interfering with the exclusive possession and physical condition of the land

REFERENCES
1. Law of Torts By Ratanlal and DhirajLal
2. Essential Tort Law By Richard Owen
3. Private Nuisance By Salik Aziz Vanice
4. Trespass to Land By Salik Aziz Vanice
5. http://pattersonlaw.ca/NewsArticleView/tabid/179/ArticleId/96/Distinguishing-
Trespass-and-Nuisance.aspx
6. https://www.allaboutlaw.co.uk/stage/study-help/tort-law-nuisance