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Tort - Private Nuisance II

Updated on July 20, 2017

Actions that once did not constitute nuisance can later constitute nuisance. The act of operating noisy machinery for example may have continued for years without there being any complaints because the adjoining houses were vacant but once a lawful occupier moves into one of the houses, he or she can seek redress in court if the actions of his or her neighbor prevent him or her from enjoying its benefits.

In Sturges v Bridgman (1879) the defendant owned and operated a bakery and the machinery that he used to grind the flour had been noisy for 20 years without a single complaint.

However, a new neighbor moved in, a medical practitioner who ran his practice from his home and he brought an action against his neighbors claiming that the noise that resulted from the bakery was disturbing his patients.

The defendants contended that they had been using the machinery for years without there being any complaints and did not see any reason to stop using it. The plaintiff was successful. Situations and circumstances change and what did not constitute nuisance 20 years ago may be treated as nuisance today.

Likewise, where the act is done also plays a part in determining whether an act is deemed to be a nuisance or otherwise. Let’s say for example, the defendant is particularly fond of chopping wood and he’d done so in his backyard for 20 years and no one has once complained about it. To the contrary people around him have complimented him for maintaining a healthy lifestyle. However, if the same defendant was to start chopping wood in the middle of High Street Kensington, he would most likely be found to be a nuisance.

If the act is done by the occupier on his or her property and the act does not interrupt the plaintiff’s right to enjoy his or her property than the act would not constitute nuisance. In Bradford Corp v Pickles (1895) the underground streams that ran through the defendant’s property were channeled by the plaintiff for his waterworks. The defendant later tried to stop the water from going to the plaintiff’s property by draining the streams. The plaintiff sued. The court held that the defendant was not liable. What the defendant does on his own property, as long as it does not interfere with the plaintiff’s right to enjoy his property, cannot be deemed as nuisance.

It’s worth comparing the decision in Bradford Corp v Pickles (1895) with the decision in the later case of Adams v Ursell (1913). Whether an act constitutes nuisance or otherwise normally depends on the facts and at times it is impossible to generalize.

It is however safe to say that as long as the act does not interfere with the right of another to enjoy his or her property than the act will not be interpreted as an act of nuisance.

In Bliss and Hall (1838) the occupiers of an adjoining property found the fumes from a candle making factory located next to their property to be offensive and accordingly brought an action in court. The court found for the plaintiff on the grounds that it was reasonable to say that the fumes from a candle making factory may cause some discomfort to the neighbors.

The smell does not necessarily need to be rancid or putrid. If a reasonable person would consider it a disturbance to his or her right to enjoy his or her property that the chances are that the act would constitute nuisance.

If an act is done with malice to deprive the plaintiff of earnings or profits than the act would constitute nuisance. In Hollywood Silver Fox Farm v Emmett (1936) the plaintiff bred silver foxes for its fur and the defendant who occupied an adjoining property fired his gun close to a den in an attempt to stop the foxes in captivity from reproducing.

The plaintiff sued and the defendant was held to be liable. The court in line with the decision in Christie v Davey (1893) found that if an act is done with malice, then the act, even if it is done on the defendant’s property may constitute nuisance.

In order for a plaintiff to claim for nuisance he or she must have some proprietary interest in the property. In Malone v Laskey (1907) the plaintiff was injured when the noise made by machinery in an adjoining property caused the cistern in a toilet to fall on her. The court held that because her husband did not have a proprietary interest in the property, she was unable to claim.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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