Law of Torts
Private Nuisance and Public Nuisance: An Interference with Land and an Offence Against the Community
The two share a name and very little else. Private nuisance is a tort protecting an interest in land: an unreasonable interference with the use or enjoyment of land, actionable by the occupier alone. Public nuisance is a crime protecting the community: an act causing common injury, danger or annoyance to the public, prosecuted by the State and abated by a Magistrate. A private individual may sue on a public nuisance only if he proves special damage peculiar to himself and beyond what the public at large has suffered. The one is about a neighbour; the other is about everybody.
1. The Comparison
Private nuisance | Public nuisance | |
What it is | A tort | A crime, which may also give rise to a civil action |
What it protects | The use and enjoyment of land | The comfort, safety and convenience of the public |
Who may sue | The occupier of the affected land, or one with a proprietary interest in it | The Advocate General, or two or more persons with the leave of the court, or an individual who proves special damage |
Interest in land | Essential | Not required |
The interference | Must be unreasonable, and judged by the standards of the locality | Must cause common injury, danger or annoyance to the public or a class of it |
Damage | Must be proved, except where the interference is with a right such as an easement | Not required for the offence; special damage is required for an individual's suit |
Prescription | A right to commit a private nuisance may be acquired by twenty years' prescription | No length of time legalises a public nuisance |
Statutory provisions | None. It is a common law tort | Section 270 of the Bharatiya Nyaya Sanhita, 2023; section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023; section 91 of the Code of Civil Procedure, 1908 |
Remedies | Damages, injunction, abatement | Prosecution, a Magistrate's order for removal, an injunction, and damages on proof of special damage |
2. Private Nuisance
- It is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it.
- The test is reasonableness, and it weighs the locality, the duration and intensity of the interference, the sensitivity of the plaintiff's use, the utility of the defendant's conduct and the defendant's motive.
- St. Helen's Smelting Co. v. Tipping, (1865) 11 HL Cas 642 draws the distinction that governs the locality argument: where the nuisance causes material injury to property, the character of the neighbourhood is no answer at all; where it causes only sensible personal discomfort, the locality is material, and what is a nuisance in a residential street may be none in a manufacturing district.
- Sturges v. Bridgman, (1879) 11 Ch D 852 supplies the companion rule: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and coming to the nuisance is no defence, so a physician who builds a consulting room at the end of his garden may restrain a confectioner's machinery that had operated harmlessly for twenty years before.
- An abnormally sensitive use is not protected, and a plaintiff cannot complain of an interference that would not have troubled an ordinary occupier.
- The subject is examined fully in TORT 058 to TORT 061.
3. Public Nuisance
Section 270, Bharatiya Nyaya Sanhita, 2023 A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage. |
- Section 292 punishes a public nuisance not otherwise provided for, with a fine which may extend to one thousand rupees.
- Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives a District Magistrate, a Sub divisional Magistrate or a specially empowered Executive Magistrate power to make a conditional order for the removal of a nuisance, covering unlawful obstruction of a public place or way, trades injurious to health or physical comfort, substances likely to cause conflagration or explosion, structures or trees likely to fall, unfenced tanks, wells and excavations, and dangerous animals. No order duly made under the section may be questioned in a civil court.
- The common instances are obstruction of a highway, a public way or a navigable channel; carrying on an offensive or dangerous trade; polluting a public water source; noise on a public scale; and keeping a thing in a state likely to endanger passers by.
- No length of time legalises a public nuisance, so prescription is no answer, and this is the sharpest single difference from private nuisance.
4. When an Individual May Sue on a Public Nuisance
- He must prove special damage, meaning damage particular to himself, beyond and different from that suffered by the public at large.
- The difference must be in kind or in degree, and a person who is merely more inconvenienced than his neighbours by the same obstruction has ordinarily suffered no special damage.
- Rose v. Miles, (1815) 4 M and S 101 is the classical illustration. The defendant wrongfully moored barges across a navigable creek. The plaintiff, whose loaded barges were thereby prevented from passing, had to unload and carry the cargo overland at considerable expense. That expense was damage peculiar to him, and the action lay.
- Ram Baj Singh v. Babulal, AIR 1982 All 285 applies the principle in India. Dust from the defendant's brick grinding machine entered the plaintiff's consulting chamber and settled on his person and on his patients. The Court held that the special damage need not be proved in terms of money: substantial injury, here the visible dust and the discomfort to a medical practice, was enough.
- Section 91 of the Code of Civil Procedure, 1908 provides the alternative route: a suit for a declaration and an injunction in respect of a public nuisance may be brought by the Advocate General, or by two or more persons with the leave of the court, and in such a suit no special damage need be proved.
5. Where One Set of Facts Is Both
The facts | The position |
A factory emits smoke over a residential area | A public nuisance as against the neighbourhood; a private nuisance as against each occupier whose enjoyment is interfered with |
An excavation is left unguarded on a highway | A public nuisance; and negligence as against the person who falls in; and a private nuisance as against an occupier whose access is obstructed |
A loudspeaker plays through the night | A public nuisance as against the locality; a private nuisance as against each household |
Effluent is discharged into a river | A public nuisance; a private nuisance as against riparian owners; and an environmental claim attracting absolute liability and the polluter pays principle |
A building is allowed to fall into a dangerous state | A public nuisance as against passers by; a private nuisance as against the adjoining occupier |
- Where the facts support both, the occupier sues in private nuisance, which requires no special damage and no leave, and adds the public nuisance claim only if he can show damage peculiar to himself.
- A person with no interest in land has only the public nuisance route, and must therefore prove special damage or proceed under section 91 of the Code of Civil Procedure, 1908.
6. Why the Two Are Kept Under One Name
- The shared name is historical and misleading. Public nuisance grew out of the criminal law's concern with obstruction of the King's highway and offences against the community; private nuisance grew out of the assize of nuisance, a land action.
- They protect different interests, the first the comfort and safety of the public and the second an interest in land, and almost every incident of the two follows from that: who may sue, whether an interest in land is needed, whether prescription runs, and whether damage must be proved.
- They overlap only accidentally, in the cases where a single activity happens to affect both a neighbourhood and its individual occupiers.
- The special damage rule is the bridge between them, and its function is to prevent the criminal wrong from generating a multiplicity of civil actions by every member of an affected public, while leaving a remedy to the person whose loss is genuinely his own.
⚠ Why prescription runs in one and not the other The single most striking difference between the two is that twenty years of uninterrupted interference can give a defendant a prescriptive right to continue a private nuisance, while no length of time whatever legalises a public one. The reason is not that public nuisances are worse, though they often are, but that prescription is a doctrine about rights over land acquired against an identifiable owner who could have objected and did not. In a private nuisance there is such a person: the neighbour whose enjoyment was interfered with, who knew of it, and whose acquiescence over two decades the law treats as having conferred an easement. In a public nuisance there is nobody in that position. The public is not an owner, it cannot acquiesce, and no individual member of it has authority to surrender a right belonging to everybody. That is also why Sturges v. Bridgman held that time does not begin to run until the activity becomes an actionable nuisance to the particular plaintiff: the confectioner had ground his sweets for twenty years, but nobody had been disturbed until the consulting room was built, so there was nothing for anyone to acquiesce in. The practical lesson is that a defendant relying on long user must be able to identify the person whose right he says has been lost, and if the answer is the public at large, the defence does not exist. |
7. The Position Stated Shortly
1. Private nuisance is a tort protecting the use and enjoyment of land; public nuisance is a crime protecting the comfort and safety of the public.
2. Only an occupier or a person with a proprietary interest in the affected land may sue in private nuisance.
3. An individual may sue on a public nuisance only if he proves special damage peculiar to himself and beyond what the public has suffered.
4. Section 270 of the Bharatiya Nyaya Sanhita, 2023 defines public nuisance, and section 292 punishes it where not otherwise provided for.
5. Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Magistrate to make a conditional order for the removal of a nuisance.
6. Section 91 of the Code of Civil Procedure, 1908 allows a suit by the Advocate General, or by two or more persons with leave, without proof of special damage.
7. Rose v. Miles and Ram Baj Singh v. Babulal illustrate special damage, and the latter holds that it need not be proved in terms of money.
8. St. Helen's Smelting v. Tipping: locality is no answer where there is material injury to property, and is material only where the complaint is of personal discomfort.
9. Sturges v. Bridgman: coming to the nuisance is no defence, and time runs only from when the activity became actionable to the plaintiff.
10. A prescriptive right to continue a private nuisance may be acquired in twenty years, but no length of time legalises a public nuisance.