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DR.

RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY, LUCKNOW

Law of torts II & consumer protection

FINAL DRAFT

On

Miller vs Jackson a critical analysis of


nuisance

Under The Guidance of:

Submitted By:

Ms. Kriti Singh

Abhishek Gautam

Astt. Proff. (Law)

Roll no. 007

Dr RMLNLU

Sec. A

Lucknow

ACKNOWLEDGEMENT
It is my greatest pleasure to be able to present this project of Law of Torts II & Consumer
protection. I found it very interesting to work on this project. I would like to thank Ms. Kriti
Singh, Asstt Prof., Faculty of law, Dr Ram Manohar Lohiya National Law University, Lucknow
for providing me with such an interesting project topic, for his unmatched efforts in making
learning an enjoyable process for his immense sincerity for the benefit of his students and for his
constant unconditional support and guidance.
I wish to acknowledge that in completing this project i received help from my friends. I
wish to acknowledge that in completing this project I had full support of my library staff. This
project would not had been completed without the help of my universitys library Dr. Madhu
Limaye library that had various quality books on the chosen topic and the universitys internet
facility that helped me in making my research a success.
I hope the project is up to the mark and is worthy of appreciation.
Abhishek Gautam

Contents
ESSENTIALS OF NUISANCE....................................................................................................7
Types of Nuisance...........................................................................................................................8
Public nuisance............................................................................................................................8
Private nuisance...........................................................................................................................8
DISTNCTION BETWEEN NUISANCE AND TRESSPASS..................................................10
REMEDIES..................................................................................................................................10
DISCUSSED CASE LAW -.........................................................................................................12
Case Name and Citation..........................................................................................................12
Strength of the Bench..............................................................................................................12
Statement of Facts....................................................................................................................12
Procedural History..................................................................................................................13
Issue Involved...........................................................................................................................13
Ratio..........................................................................................................................................13
Decision or Law laid down......................................................................................................13
DEFENCES..................................................................................................................................14
Conclusion....................................................................................................................................16
Bibliography.................................................................................................................................17

AIM OF THE PROJECT

To Study the nature of Nuisance.


To study nuisance with special reference to Miller V. Jackson case.

To understand different provision of the principle of nuisance as expressed and explained


in the case laws.

To understand the rule laid down in the case Miller V. Jackson.


To study the exceptions of this principle.

RESEARCH METHODOLOGY
The research methodology adopted in this project report is Doctrinal Method.

HYPOTHEYSIS
In this project I try to highlight the principle of nuisance by critically analysing the judgement in
Miller V. Jackson, bringing out the various types of nuisance committed and what actually
constitute a nuisance i.e. essential ingredients, various types of defences available.

RESEARCH QUESTIONS
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What is nuisance?
How a nuisance is committed and various types of nuisance?
Essential ingredients to constitute a tort of nuisance.
Distinction between nuisance and trespass.
Nuisance whether civil wrong or criminal wrong?
Defenses available under nuisance.

SOURCES
Books
Web Pages

Introduction

Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury.
A nuisance can be either public (also "common") or private.
The term public nuisance covers a wide variety of minor crimes that threaten the health,
morals, safety, comfort, convenience, or welfare of a community. A public nuisance interferes
with the public as a class, not merely one person or a group of citizens. No civil remedy exists
for a private citizen harmed by a public nuisance, even if his or her harm was greater than the
harm suffered by others; a criminal prosecution is the exclusive remedy. However, if the
individual suffers harm that is different from that suffered by the general public, the individual
may maintain a TORT ACTION for damages.
A private nuisance is an interference with a person's enjoyment and use of his land. The
law recognizes that landowners, or those in rightful possession of land, have the right to the
unimpaired condition of the property and to reasonable comfort and convenience in its
occupation.
The word nuisance is derived from the French word nuire, which means to do hurt,
or to annoy. One in possession of a property is entitled as per law to undisturbed enjoyment of
it. If someone elses improper use in his property results into an unlawful interference with his
use or enjoyment of that property or of some right over, or in connection with it, we may say that
tort of nuisance occurred. In other words, Nuisance is an unlawful interference with a persons
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use or enjoyment of land, or of some right over, or in connection with it. Nuisance is an injury to
the right of a person in possession of a property to undisturbed enjoyment of it and result from an
improper use by another person in his property. Stephen defined nuisance to be anything done
to the hurt or annoyance of the lands, tenements of another, and not amounting to a trespass.
According to Salmond, the wrong of nuisance consists in causing or allowing without
lawful justification the escape of any deleterious thing from his land or from elsewhere into land
in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity,
disease, germs, animals.

ESSENTIALS OF NUISANCE
In order that nuisance is actionable tort, it is essential that there should exist:
Wrongful acts
Damage or loss or inconvenience or annoyance caused to another.
Inconvenience or discomfort to be considered must be more than mere delicacy or
fastidious and more than producing sensitive personal discomfort or annoyance. Such annoyance
or discomfort or inconvenience must be such which the law considers as substantial or material.
In Ushaben v. BhagyalaxmiChitraMandir1, the plaintiffs-appellants sued the defendantsrespondents for a permanent injunction to restrain them from exhibiting the film Jai
SantoshiMaa. It was contended that exhibition of the film was a nuisance because the plaintiffs
religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous
and were ridiculed. It was held that hurt to religious feelings was not an actionable wrong.
Moreover the plaintiffs were free not to see the movie again.
1 AIR 1978 Guj 13
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In Halsey v. Esso Petroleum Co. Ltd. 2, the defendants depot dealt with fuel oil in its light from
the chimneys projected from the boiler house, acid smuts containing sulphate were emitted and
were visible falling outside the plaintiffs house. There was proof that the smuts had damaged
clothes hung out to dry in the garden of the plaintiffs house and also paint work of the plaintiffs
car which he kept on the highway outside the door of his house. The depot emanated a pungent
and nauseating smell of oil which went beyond a background smell and was more than would
affect a sensitive person but the plaintiff had not suffered any injury in health from the smell.
During the night there was noise from the boilers which at its peak caused window and doors in
the plaintiffs house to vibrate and prevented the plaintiffs sleeping. An action was brought by
the plaintiff for nuisance by acid smuts, smell and noise. The defendants were held liable to the
plaintiff in respect of emission of acid smuts, noise or smell.

Types of Nuisance - There are two recognised types of nuisance, private and public. Both
types of nuisance involve interference with an individual's enjoyment of land.
Public nuisance is often both a civil wrong and a crime, and there may be penalties such as fines
or imprisonment ordered against those responsible for creating the nuisance.
Private nuisance is not a crime; it is essentially a dispute between two individuals.
Public nuisance
An example of public nuisance would be someone blocking off a public road. This action would
have an effect on a wide range of people, each of whom would be affected or disadvantaged to
differing degrees. For an individual to have an action for compensation for the inconvenience or
interference suffered, they would have to show that the impact was such as to cause them special

2 (1961) 2 All ER 145


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damage. That is, they must show that the impact on them was greater than that on the general
public.
In the example above, to have any sort of action for compensation for nuisance you
would have to show that you needed to use that particular road to go to work each day and that
the action of blocking it caused you particular problems in getting to work, or a similar sort of
inconvenience. It would not be enough to say to a court that you had suffered a minor
inconvenience or could no longer have your usual Sunday drive because the road was blocked.
The inconvenience or interference must not be trivial or inconsequential, or lacking in good
reason for it occurring or continuing to occur.
Private nuisance
Private nuisance is just that private. It is enough to show that you have been affected by
some act or omission of another person. The effect must be that your enjoyment and use of your
land has been interfered with.
To have a claim relating to a private nuisance, you must show that you live on the property (this
includes if you are living on the land under an agreement with the owner).
In making your complaint to the court, you must show that the nuisance complained of is
not trivial or unreasonable. When deciding whether what you complain about is a "private
nuisance", the court would look at a number of factors, including:

the general nature of your neighbourhood;

where the interference took place (or is taking place);

what activity is causing the interference;

how long the interference lasted and whether it is ongoing;

the time of day or night the interference occurs;

the impact the interference is having on you;


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whether the interference was pre-existing when you moved into your property;

how useful or necessary the activity causing the interference is; and

What reasonable people would think of the interference?


The court tries to use common sense in assessing these factors. It will also weigh the

inconvenience or impact of the interference on you against the cost and effect of having the
person responsible for the interference modify or stop their activities.
Examples of interference that have been found to be private nuisances include: noisy
animals, loud air-conditioners, smoke, overhanging tree branches, tree roots growing into
neighbours land and interfering with drainage, vibrations and dust. Activities that have caused
people to fear for their safety, such as aerial spraying of crops and firing of guns on a rifle range,
have also been assessed as "private nuisance".
It is a reality of living in close quarters to our neighbours that there will be competing
interests and activities, which on occasion may affect the enjoyment of living in the
neighbourhood. A court, in deciding on a complaint of nuisance, will weigh up these competing
interests in a pragmatic sense, recognizing that some noise, annoyance, inconvenience and
discomfort are likely to occur wherever people live. For example, your neighbours barking dog
might wake you up every once in a while, but courts know that dogs bark and that the law allows
people to keep dogs. Unless a dog is particularly noisy, a court will not usually help you to keep
it quiet.

DISTNCTION BETWEEN NUISANCE AND TRESSPASS Trespass is direct physical interference with the plaintiffs possession of land through some
material or tangible object while nuisance is an injury to some right accessory to possession but
no possession itself.
E.g. a right of way or light is an incorporeal right over property not amounting to
possession of it, and hence disturbance of it is a nuisance and not trespass.

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Trespass is actionable per se, while nuisance is actionable only on proof of actual
damage. It means trespass and nuisance are mutually exclusive.
Simple entry on anothers property without causing him any other injury would be
trespass. In nuisance injury to the property of another or interference with his personal comfort
or enjoyment of property is necessary. They may overlap when the injury is to possessory as
well as to some right necessary to possession. E.g. trespass of cattle discharge of noxious matter
into a stream and ultimately on anothers land.
To cause a material and tangible loss to an object or to enter another persons land is
trespass and not nuisance; but where the thing is not material and tangible or where though
material and tangible, it is not direct act of the defendant but merely consequential *on his act,
the injury is not trespass but merely a nuisance actionable on proof of actual damage.
If interference is direct, the wrong is trespass, if it is consequential, it amounts to
nuisance. E.g. planting a tree on anothers land is trespass, whereas when one plants a tree over
his own land and the roots or branches project into or over the land of another person, act is
nuisance.

REMEDIES - A person injured from private nuisance can make a claim for either damages or
injunctive relief or for both. Accordingly, remedies available for nuisance under law include:

damages; or

injunctive relief; or

A combination of both damages and injunctive relief for separate harms alleged.
In the case of a public nuisance, an injured party can initiate a criminal prosecution

against an offender. However, in some cases a nuisance can be disposed of summarily without
any judicial proceedings.

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Generally, nuisance falls within the jurisdiction of the state courts. However, in cases
where the foundation of nuisance lies in the Constitution, or specific federal statutes, or
regulations, and case law, nuisance is determined by the federal courts.
A private citizen who suffered an injury by reason of a public nuisance can sustain an
action for nuisance, if s/he establishes that an injury special and peculiar to himself/herself and
different from the one suffered in common by the general public was caused to him/her.
In ordinary nuisance cases, the standard adopted by the court for determining relief is the
standard of reasonableness. In determining the standard of reasonableness, the court usually
depends upon the effect of an activity upon ones neighbours in the particular circumstances and
locality.
A notice or a request to abate a nuisance is a prerequisite in cases where a nuisance action
is brought against a person who did not create a nuisance and who did not have knowledge of its
existence. Likewise, a notice or request to abate the nuisance is necessary in cases where a
nuisance results from an operation that is ordinarily harmless.
A nuisance action without notice is permitted in the following cases:

where a substantial injury is caused by a nuisance;

where a danger to health, life, or property is imminent from the nuisance;

where there is an urgent necessity to remove the nuisance; and

Where after complaint and notice of damage, the landowner continues to offend and
refuses to correct the nuisance.
Therefore, before imposing liability upon a political subdivision for injuries caused by

nuisance, an actual or constructive knowledge of nuisance that posed danger to the public is
essential.

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Both in public and private nuisance actions, the allegations must allege those facts that
would bring the thing or conduct complained of within the definition of nuisance. In an action
for damages, the word nuisance need not be used, if the alleged facts when proved would
constitute a nuisance. In other words the allegations must specifically plead that there was a
substantial interference with the use and enjoyment of the premises.
Generally, the burden of proving a nuisance is upon a party who alleges it. The
complaining party must show that the facts alleged constituted a nuisance to a reasonable man.
Hence a complaining party through clear evidence must prove:

the existence of nuisance; and

The injury caused by nuisance.


Any nuisance action brought before the court of law will be determined on the basis of

the facts of each case. Apart from determining the existence of a nuisance, the court shall also
determine the following facts:

whether the proximate cause of a plaintiffs injury was defendants act;

whether there is sufficient injury or annoyance to constitute nuisance;

whether there was a loss of ordinary use and enjoyment by a plaintiff;

whether a plaintiffs reaction to the alleged interference was a normal one;

whether nuisance is permanent or temporary in nature;

whether nuisance is abatable;

whether nuisance was created negligently or intentionally; and

Whether a defendant acted with malice or in reckless disregard of the rights of others.

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DISCUSSED CASE LAW Case Name and Citation Miller Vs Jackson [1977] 3 All ER 338

Strength of the Bench Full Bench, comprising Lord Denning MR and Geoffrey Lane and
Cumming-Bruce LJJ

Statement of Facts The defendants were members of the Lintz Cricket Club. Cricket had been
played at Lintz cricket ground for over 70 years. The land was owned by the National Coal
Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the
action, the NCB sold one of the fields and a development of Wimpey homes was put up in close
proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action
against the cricket club seeking an injunction to prevent them playing cricket at the ground.
Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club
erected a higher fence and the number of balls hit out was reduced to nine over a two year
period. There had been no personal injuries resulting from the balls but some property damage
had been caused which the cricket club had paid for. Mrs Miller complained that she could not
use her garden during matches and would often stay out of the house altogether.

Procedural History Reeve J. heard the case at first instance in the High Court in Nottingham.
He delivered his judgment on 3 December 1976, granting the Millers the injunction they sought,
and ordering the club to pay general damages of 150 for negligence and nuisance, for the
inconvenience and interference with the use of the Millers' property.

Issue Involved

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1. Is playing cricket a nuisance?


2. Is it relevant that the houses were recently built and the field has been there for 70 years?
3. Is this an unreasonable use of the land?
Ratio Public interest should be considered in cases of nuisance and weighed in an equitable
manner.
Decision or Law laid down Lord Denning applies a two-part test to determine if this is a
nuisance:
1. Is this a reasonable use of the land?
2. If it was not a nuisance before, does it suddenly become one when people encroach on
the grounds whose use they clearly knew beforehand?
Denning finds that this is not a nuisance, and states that the Millers should have
understood this would happen before they purchased the house. He finds that this is not a case of
nuisance or negligence and thus dismisses the desired injunction. He holds that the public
interest here overrides the interests of the respondents. He says that if the houses had been there
first, this would have been a nuisance, however it was not a nuisance before the houses were
there and their construction does not all of a sudden make this a nuisance.
Cumming-Bruce finds that although there is nuisance and negligence here on the part of
the cricket club, he does not grant an injunction based on the principles of equity. He states that
the public interest is relevant here, and must be balanced against the interests of the Millers. The
risk of damage does not fortify the case for an injunction.
Lane, in the dissent, finds that this is a case of nuisance, and the fact that the respondents
"moved into" the nuisance is irrelevant. He states that an injunction should follow and that the
public interest does not outweigh the threat of harm to the Millers. He also considers the threat of
personal harm.

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DEFENCESGenerally, nuisances cannot be justified on the ground of necessity, pecuniary interest,


convenience, or economic advantage to a defendant. An act cannot be a nuisance if it is
imperatively demanded by public convenience. Thus, when the public welfare requires it, a
nuisance may be permitted for special purposes.
However, at times, private interests must yield to the public good, and under the pressure
of public necessity what may amount to a nuisance otherwise may be inflicted upon certain
members of the community. Therefore, necessity is a defence to the tort of nuisance. It is to be
noted that injuries to a private property that result from the exercise by a private corporation of
public functions are damnum sin qua injuria.
Generally, there is no justification for maintaining a nuisance because the party
complaining of it came voluntarily within its reach. In other words, a defence cannot be made to
an action for nuisance that a plaintiff came to the nuisance by knowingly acquiring property in
the vicinity of the defendants premises. The duty to use due care is not abated towards one who
has elected to live or reside in the vicinity of the nuisance.
It is to be noted that if a person merely assents to or participates in the erection for hire of
a plant, s/he would not be estopped to complain of injury caused by the operation of the plant so
as to constitute an actionable private nuisance without regard to negligence or want of due care.
Consent is generally a full and perfect shield, when what is complained of is a civil injury which
was consented to. A person cannot complain of a nuisance, the erection of which s/he concurred
in or countenanced. In actions founded on tort, the leave and license of the plaintiff to do an act
complained of constitutes a good defence by reason of the maxim volenti non fit injuria and as a
rule, a man must bear loss arising from acts to which s/he has assented.
A right to maintain a private nuisance may rest in a license from the individual affected
by the licensees offensive conduct. In an action seeking redress for such a nuisance, if the
defendant can show an authorization from the plaintiff, then s/he completely discharges
himself/herself from liability. A party aggrieved has the right to remove a private nuisance by
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abatement. As an obstruction or encroachment can constitute a private nuisance, the owner of


the easement may under the rules applicable to the abatement of nuisances proceed to abate it.
An easement may be created by words of covenant as well as by words of grant. An
easement may permit an activity on land which otherwise amounts to nuisance in relation to
other land. If the right to maintain the nuisance amounts to an easement, it is held that a license
or authorization to maintain it must rest in an express grant in order to confer a right that is
beyond the power of the licensor to revoke.

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Conclusion
It was held by Lord Denning that the defendants were liable in both negligence and nuisance.
However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable
to grant an injunction given that the cricket ground had been used for so long and would be a loss
to the community and Mrs Miller received the benefit of being adjacent to an open space.
Lord Lane would have granted the injunction stating that the decision in Sturges v
Bridgeman3 involves the assumption that it is no defence for the defendant to show that they
came to the nuisance.There may be an overlap between nuisance and negligence as a negligent
act may give rise to nuisance.
Nuisance is one of the oldest actions in the common law. The object of nuisance is to protect a
person's proprietary interest in land, as opposed to protecting any personal interests. There are
two types of nuisance: public and private. Public nuisance is a crime which will be prosecuted by
the appropriate authority though individuals can sue for damages if they have suffered special
damage (damage above what the public has suffered). Most of this tutorial is concerned with
private nuisance. Private nuisance requires that the Defendant is using his land in an
unreasonable manner. If a Claimant is successful at trial they can claim damages and/or an
injunction to prevent the nuisance from continuing or occurring in the future.

3[1879] 11 Ch D 852 Court of Appeal


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Bibliography
1. Bangia, R.K., Law of Torts, Allahabad Law Agency, Faridabad, 22nd Edition, 2010.
2. Ratanlal&DhirajlalsThe Law of Torts, LexisNexis, Nagpur, 26th Edition, 2010.
3. Winfield &JollowizsLaw of Torts
4. Shugerman, Jed Handelsman, The Floodgates of Strict Liability: Bursting Reservoirs
and the Adoption of Fletcher v. Rylandsin the Gilded Age, The Yale Law Journal, Vol.
110, 2010, page 333-377.

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