Nuisance

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 377-403

377

CHA PTER 6

NUISA NCE

A. INTRODUCTION

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

Other than their na me, 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 th at are common to all citizens, such as

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

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

the diff‌iculty in def‌ining the limit s 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 intr usion onto land that is in the posses sion

of the plaintiff. It is actionable without proof of damage. The rule in

Rylands v. Fletcher1 provides a remedy for damage caused by the escape

of something likely to do mi schief from a neighbour’s non-natural use

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 TORTS378

of land. Negligence is available in respect of all physical 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 interfer-

ence th at is not physical.2 Pr ivate nuis ance i s most frequently used to

deal wit h noise, odour, fumes, dust, and smoke t hat eman ate from the

defendant’s land and interfere with the plaintiff’s use, enjoyment, and

comfort of land. Private nui sance i s not actionable unle ss t he interfer-

ence is unreasonable and the pla intiff 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 plaint iff’s intere st in the u se and enjoyment of l and. Although

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

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

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

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

interference caused to the plaint iff.

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 t ake between neighbours and a degree of tolerance of t he

reasonable and benef‌icial activities 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 la nd. This

discretionar y concept allows courts to tailor their decisions sensitively

to t he particular circumstances of the ca se. The advantage of a high

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

degree of uncertainty and unpred ictability, le ading some commenta-

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

making.3 One useful starting point is to distingui sh between conduct

that causes physical and material damage to the plaintiff ’s land and con-

duct that interferes with t he plaintiff ’s enjoyment and comfort of land.

1) Physical Damage to Land

The courts take a str ict approach to the inf‌liction of physical dam-

age to t he plaint iff’s property. The inf‌liction of physical damage is, in

2 In some situation s private nuisance may provid e a remedy for a series of direct

physical intr usions, such as the continu al 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.).

3 William P rosser described t he law of nuisance as an “imp enetrable jungle”: see

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

West, 1984) at 616.