Distinction between Private and Public Nuisance

Jaba Shadrack, UDSM –School of Law (jaba@udsm.ac.tz )

Etymologically, the term 'nuisance' is derived from a Latin word 'nocere' which means 'to hurt' or 'annoyance'. However, Professor Prosser contends that 'nuisance' is a French word which means nothing more than harm, and that it entered English law at a very early date as the name of a tort against land. Spencer reconciles the two positions by asserting that the term 'nuisance' is a Norman-French, which in turn comes from the Latin 'nocumentum' i.e. harm. 

Whatever the origin, the law of nuisance as understood in Tanzania may be traced in the English common law tort. Basically, the term 'nuisance' is defined in the Black's Law Dictionary as a condition, activity, or situation (such as a loud noise or foul odour) that interferes with the use or enjoyment of property; especially, a non-transitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways. 

To put it in a nutshell, a nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. Prosser (ante) adds that the interference may be with the use or enjoyment of land, or with a right of easement or servitude over the land. It is distinguished from disseisin in that the plaintiff is not dispossessed, and from trespass in that there is no entry, the defendant's tortious acts occurs outside of the land. 

Though a person has a complete dominion and power over his own land and may do with it what he pleases, he is nevertheless bound, agreeably to the maxims, 'Sic utere tuo ut alienum non laedas', and 'Prohibetur ne quis faciat in suo quod nocere posit alieno,' to use his property in such a manner as not to injure his neighbour's. One important point to consider is that the law of nuisance is concerned with the type of harm caused and the interest invaded, rather than the defendant's conduct. 

Depending on the school of thought at hand, commonly the doctrine of nuisance is branched into two, namely as 'private' and 'public' nuisances, though other scholars like John Cooke adjoin 'statutory nuisance' as a third branch. Nonetheless, this essay will be centred on the first two branches. Salmondcontends that public and private nuisances are not in reality two species of the same genus at all. Taking Salmond's contention as a point of departure, it suffice now to appraise the differences between private and public nuisances in extenso as follows; 

First, definitions; a public nuisance is referred to as an unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. It is also termed as 'common nuisance'. While a private nuisance entails a condition that interferes with a person's enjoyment of property; especially a structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor's land and amounting to a trespass to it. 

Second, by origin; public nuisance emanated from acts of encroachment upon the royal domain or the king's highway (purprestures cases), and was redressed by the king's justice in a criminal proceeding. While private nuisance took pace during the English Industrial Revolution as a tool used by the Courts for zoning land for particular purposes (there was no detailed planning law) and to draw a balance between rights of adjacent landowners. 

Third, nature of action; every public nuisance is a crime. It acquires its tortious characteristic by virtue of the rule that a person who suffers special damage may bring an action in tort. In A-G V. PYA QUARRIES a quarrying operations were conducted in such a way that local residents were affected by dust and vibrations from explosions. The court pointed out that a public nuisance is one which materially affects the reasonable comfort and convenience of life of a class of her majesty's subjects. The defendant's activities were held to amount to a public nuisance. While a private nuisance, is inherently a civil wrong. The rationale is to balance the defendant's rights to use his land as he wishes and the plaintiff's right to enjoy his land without interference. In HARRIS V. JAMES a field was let by 'S' to 'J' for 'J' to work it as a lime quarry and to set up lime kilns. The plaintiff complained of smoke from a kilns and nuisance caused by blasting in the quarrying. 'J' was liable as occupier and 'S' for authoring the commission of a nuisance.

Fourth, scope (or range) of harm; an alleged conduct must be offensive to a large number of people to sustain a conviction for any public nuisance. It involves a class of people, thus it is widespread in range. For example, in FESTO BALEGELE AND 749 OTHERS V. DAR ES SALAAM CITY COUNCIL, the plaintiffs were residents of Kunduchi-Mtongani. The defendant City Council used this site to dump the city's waste in execution of their statutory duty of waste disposal. The dumped refuse endangered the residents' lives. The plaintiffs' prayer for restraining orders was granted by the High Court. In determining a public nuisance the court will look at the following factors, whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience; or whether the conduct is proscribed by a statute, ordinance, or administrative regulation; or whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the person knows or has reason to know, has a significant effect upon the public right. While a private nuisance affects an individual (a person) or a family. For instance, if a farmer has failed to properly dispose of a significant amount of manure, or at least cover up its smells, and neighbours and an adjacent neighbourhood could not avoid the odours; it would constitute a public nuisance. If there was one family immediately adjacent to that property, yet it could be smelled beyond that immediate family it would constitute a private nuisance since it is only affecting the family adjacent to that family. Since there are no neighbours around it would then be considered a private nuisance. In essence, a private nuisance is one that is felt by a single person or perhaps a single family. By contrast, a public nuisance is one whose impact is felt by a large number of people. To sum up this point, Lord Denning LJ in AG V PYA QUARRIES LTD., agreed with Romer LJ, and went on to say that "the classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals..........that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large." 

Finally, remedy; since a public nuisance is 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. Therefore to warrant civil claim (in tort) a plaintiff must prove that he has sustained special damage. This point is elucidated by the case of CASTLE V. ST. AUGUSTINE'S LINKS where the plaintiff car driver was struck by a golf ball hit from the thirteenth tee of the defendants' golf course as he was driving on the highway. Balls frequently went over the highway. The siting of the tee amounted to a nuisance. The class of persons affected were highway users. The plaintiff had suffered special damage, so the defendants were liable in public nuisance. However, it should be borne in mind that in the above case, if the plaintiff at all, had been on his own land the action would have been in private nuisance. In most cases, the remedy for a public nuisance is sought by the affected government, 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 damage i.e. they must show that the impact on them was greater than that on the general public. While a plaintiff who has filed an action for private nuisance may seek injunction and damages for damage to property. In general, the remedy for private nuisance is a civil suit brought by the offended private citizen against another individual.

Facts which a Plaintiff is bound to Prove in an Action for Nuisance

(a) Private nuisance:

Where the suit is instituted under the caption of private nuisance, normally, the plaintiff is bound to prove the following three facts; namely as Ownership of the land, Interference with the use or enjoyment of the land (i.e. duration, locality, sensitivity, public utility and damage) and or Malice.

(i) Ownership of the land; the plaintiff must show his locus standi in the case at hand, by substantiating that at the time of the complained nuisance he was a possessor or occupier of the land. For example, a tenant, landlord, or has reversionary rights. As per HUNTER V. CANARY WHARF LTD only a person with an interest in the land can sue. 

(ii) Interference with use or enjoyment of land; the plaintiff must establish that the defendant has caused a substantial interference with his use or enjoyment of land. The court will not consider trivial interferences. The interferences may take a number of forms but some of the commonest are smells, vibrations, noise, dust, and other emissions. Whether the interference amounts to a nuisance is under the discretion of the Court to determine. However, the plaintiff must prove five factors;- 

First, is duration/intensity; that the alleged interference has existed for a considerable lengthy of time (i.e. continuing or deliberate nuisance). As a general rule, a single event or incident do not qualify as a nuisance. In BOLTON V. STONE, the isolated escape of a cricket ball from the ground was held not to be a nuisance. Hence, the court will evoke the reasonableness test to determine this point. However, under the rule of prescription, the plaintiff will be barred to complain against a nuisance that has existed for 20 years. 

Second, locality, the plaintiff has to show that the act that amount to a nuisance is carried out in an improper area (e.g., industrial/agricultural/commercial activities in a residential area). For example, making a disruptive amount of noise is more likely to be unreasonable in a quiet rural area than in an industrial zone as it was in STURGES V. BRIDGMAN. In FESTO BALEGELE AND 794 OTHERS V. DSM CITY COUNCIL, Rubama, J argued that by collecting refuse from all over the City to dump it at Kunduchi-Mtongani contrary to the City's Master Plan; while the area is by the city Master Plan not zoned as one of the five sites for refuse disposal but zoned for residential and that there are several people residing there to whom a nuisance has been created was ultravires thus a nuisance. 

Third, sensitivity, that the damaged plaintiff's property was not sensitive to defendant's conduct. Veale J., in HALSEY V. ESSO PETROLEUM CO. LTD., held the defendant liable in private nuisance by contending that oily smells went far beyond a triviality and in view of its frequency and intensity it was more than it would affect a sensitive person. 

Fourth, public/social utility, it must be proven that the defendant's conduct was not in the public interest or that the defendant has no statutory authority to commit a nuisance. In DENNIS V. MINISTRY OF DEFENCE, Buckley J., ruled that the noise from Harrier jet fighters on a military base used for training pilots bordering the claimant's land was an interference with the enjoyment of the property that no one should be called upon to endure in any location, and that it constituted a nuisance at common law and infringed claimants' human rights. However, he held that training must continue on the base in the public interest.

Finally, damage, the plaintiff in order to succeed in certain instances has to prove damage; this is because the tort of nuisance is not actionable per se. It must be damage to his rights in land and not the person. If the land is physically affected, `damage' may be presumed by the court, even if the claimant cannot show that his land has diminished in value. For example, in HUNTER V. CANARY WHARF LTD., the deposit of dust on the claimant's land was held to be capable of amounting to `damage', even though the claimant had not shown that the value of his land had been adversely affected. So `damage' is a somewhat broader concept in nuisance than in negligence. The damage can be to the amenity of the land, rather than its physical state. If the defendant's actions cause the land to become less valuable, this constitutes an actionable loss of amenity. For example, in TETLEY V. CHITTY, noise from a go-kart track was held to be an actionable nuisance.

(iii) Malice; the plaintiff is duty bound to show that the defendant committed a particular act with evil motive. The bad motive or malice of the defendant may make what would otherwise have been reasonable conduct, unreasonable and a nuisance. In HOLLYWOOD SILVER FOX FARM V. EMMETT , the defendant's shooting was perfectly lawful, and would not have amounted to a nuisance had it not been done with malice.

(b) Public nuisance:

As a general rule, an action to abate/correct a public nuisance must be brought by a government or its agency. In addition to a civil suit, the government could also bring criminal charges against the wrongdoer. The rationale of this rule was echoed in AG. V. PYA QUARRIES LTD, that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken as the responsibility of the community at large. Besides, Courts do not want multiplicity of suits for an offense that would be within the sphere of the public's prosecuting officer to punish it. However, class or group action (representative suits) also have been allowed in some instances.

Alternatively, there are circumstances that may warrant a person to sue singly for a public nuisance. In this regard, the plaintiff must prove special damage, but he does not need to establish his interest in the land. For example, if dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may bring a tort action for personal injuries. *This point will be elucidated clearly under Part B of this work.

Essentially, whether it is the Government or an individual suing for public nuisance must establish interference with a public right, damage and malice. In determining whether there is interference with a public right the Court usually will look at the circumstances such as: whether the tortious conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience; or whether the conduct is banned by a statute, ordinance, or administrative regulation; or whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and the defendant knows or has reason to know, has a significant effect upon the public right. 

Nevertheless, because of the difficulties involved in differentiating public and private nuisances, Courts and Attorneys do not always embark on distinguishing between the two. In JOB EDWARDS LTD. V. BIRMINGHAM NAVIGATIONS , Scrutton, L.J., (dissenting) opined that no difference could be made between public and private nuisances, as far as the incidence of liability for ensuing damage was concerned, and that it was the duty of an occupier to remove a nuisance on his land, of which he knew or reasonably ought to have known. This position was affirmed by the House of Lords in the latter case of SEDLEIGH-DENFIELD V. ST. JOSEPH SOCIETY FOR FOREIGN MISSIONS. 

Conclusion: 

Generally speaking, there are several nuisance theories on which nuisance claims can be based. The first is strict liability. If the activities of the wrongdoer or the conditions are abnormally dangerous, he can be held strictly liable for resulting injuries, even if he was not negligent. A second nuisance theory is intentional interference with another's enjoyment. This is the most frequently used basis for nuisance suits. The intentional interference must also be considered to be unreasonable [i.e., (a) the gravity of the harm outweighs the utility of the conduct or (b) the harm caused is serious and the cost to compensate for it makes the conduct not feasible]. A third nuisance theory is negligence, where all of the elements must be present: (1) existence of a duty, (2) breach of that duty, (3) causation in fact and proximate causation, and (4) actual damages.

NB: This document is also available in PDF and iPaper (with footnotes) at: www.scribd.com/jabashadrack

REFERENCES:

Books 

Abbott, K, (2002), Business Law 7th Ed, Continuum publishers, London

Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe

Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West

Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing 

Juma I.H. (2007), Learning materials: Law of Tort, DUP 

Lewthwaite, J. (2004), Tort Law, Oxford University Press, New York

Restatement (Second) of Torts (1979)

Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London

Journal Articles:

Anonymous: Nuisance: Public Nuisance - Suit by Private Citizen, in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 24, No. 7 (Nov., 1924), p. 806 

Anonymous: Who May Recover for Injury from a Nuisance? In Columbia Law Review: Columbia Law Review Association, Inc. Vol. 13, No. 5 (May, 1913), pp. 433-434 

Elvin, J. The Law of Nuisance and the Human Rights Act, in Cambridge Law Journal: Cambridge University Press, Vol. 62, No. 3 (Nov., 2003), pp. 546-548

Friedmann, W., Incidence of Liability for Nuisance, in Modern Law Review: Blackwell, Vol. 4, No. 2 (Oct., 1940), pp. 139-144

Gevurtz, F., Obstruction of Sunlight as a Private Nuisance, in California Law Review: California Law Review, Inc., Vol. 65, No. 1 (Jan., 1977), pp. 94-119

Hodas, R.D., Private Actions for Public Nuisance: Common Law Citizen Suits for Relief From Environmental Harm, in Ecology Law Quarterly: Vol. 16:883, 1989, p. 883-908

Keeton, P., Trespass, Nuisance, and Strict Liability; in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 59, No. 3 (Mar., 1959), pp. 457-475

Prosser, W.L., Private Action for Public Nuisance, Virginia Law Review: Vol. 52, No. 6 (Oct., 1966), pp. 997-1027

Spencer, J. R., Public Nuisance: A Critical Examination, in Cambridge Law Journal: Cambridge University Press, Vol. 48, No. 1 (Mar., 1989), pp. 55-84

Thayer, E.R., Public Wrong and Private Action, in Harvard Law Review: The Harvard Law Review Association, Vol. 27, No. 4 (Feb., 1914), pp. 317-343

Useful Web Links:

http://law.jrank.org/pages/8867/Nuisance-Public-Nuisance.html

http://www.jstor.org

http://www.lawhandbook.org.au/handbook/ch10s02s02.php