Nuisance

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 359-384

359

CHAPTER 6

NUISANCE

A.INTRODUCTION

There are two torts of nuisance: private nuisance and public nuisance.

Other than their name, they do not have a great deal in common. Pri-

vate nuisance protects people from interference with the use, enjoy-

ment, and comfort of their land. Public nuisance primarily protects the

public in the exercise of rights that are common to all citizens, such as

the right of passage on public highways and navigable rivers. A com-

mon trait of each tort is the elusive nature of the term “nuisance” and

the diff‌iculty in def‌ining the limits of its application.

B. PRIVATE NUISANCE

A person’s interest in the integrity, security, enjoyment, and use of

land is protected by the torts of trespass to land, the rule in Rylands v.

Fletcher, negligence, and private nuisance. Trespass to land is available

in respect of any direct and physical intrusion onto land that is in the

possession of the plaintiff. It is actionable without proof of damage.

The rule in Rylands v. Fletcher1 provides a remedy for damage caused

1(1868), L.R. 3 H.L. 330, aff’g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex. 265

(Ex. Ch.).

THE LAW OF TORTS360

by the escape of something likely to do mischief from a neighbour’s

non-natural use of land. Negligence is available in respect of all phys-

ical damage to land caused by a failure to take care. Private nuisance is

applicable to indirect physical or intangible interference with property

and all direct interference that i s not physical.2 Private nuisance is most

frequently used to deal with noise, odour, fumes, dust, and smoke that

emanate from the defendant’s land and interfere w ith the plaintiff’s use,

enjoyment, and comfort of land. Private nuisance is not actionable un-

less the interference is unre asonable and the plaintiff has suffered some

damage.

The primary function of private nuisance is to draw an appropriate

balance between the defendant’s interest in using land as he pleases

and the plaintiff’s interest in the use and enjoyment of land. Although

some fault concepts have crept into the private nuisance action, it is

still, in the main, a tort of strict liability. Liability does not depend

upon the nature of the defendant’s conduct or on any proof of intention

or negligence. It depends, primarily, upon the nature and extent of the

interference caused to the plaintiff.

Not every interference with the comfort and enjoyment of property

is a nuisance. In both urban and rural areas there must be a good deal

of give and take between neighbours and a degree of tolerance of the

reasonable and benef‌icial act ivities of others. The limits of tolerance are

reached when the defendant’s activity causes an unreasonable inter-

ference with the plaintiff’s use, enjoyment, and comfort of land. This

discretionary concept allows courts to tailor their decisions sensitively

to the particular circumstances of the case. The advantage of a high

degree of fact sensitivity and f‌lexibility is, however, offset by a related

degree of uncertainty and unpredictability, leading some commenta-

tors to despair of f‌inding a workable and predictable guide to decision

making.3 One useful starting point is to distinguish between conduct

that causesphysical and material dam age to the plaintiff’s land and con-

duct that interferes with the plaintiff’s enjoyment and comfort of land.

2In some situation s private nuisance may provide a re medy for a series of direct

physical intr usions, such as the conti nual intrusion of golf ball s from a neigh-

bouring golf cour se. See Carley v. Willow Park Golf Course Ltd., [2002] A.J. No.

1174 (Q.B.).

3William Prosser described the law of nuisance as an “impenetrable jungle”: see

W.P. Keeton, ed., Prosser and Keeton on the L aw of Torts, 5th ed. (St. Paul, Min n.:

West, 1984) at 616.