B. Private Nuisance

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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There are two torts of nuisance: private nuisance and public nuisance. Other than their name, they do not have a great deal in common. Private nuisance protects people from interference with the use, enjoyment, 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 common trait of each tort is the elusive nature of the term "nuisance" and the difficulty in defining the limits of its application.

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. Fletcher1provides a remedy for damage caused by the escape of something likely to do mischief from a neighbour’s non-natural use

(Ex. Ch.).

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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 interference that is not physical.2Private nuisance is most frequently used to deal with noise, odour, fumes, dust, and smoke that emanate from the defendant’s land and interfere with the plaintiff’s use, enjoyment, and comfort of land. Private nuisance is not actionable unless the interference is unreasonable 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 activities of others. The limits of tolerance are reached when the defendant’s activity causes an unreasonable interference 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 commentators to despair of finding a workable and predictable guide to decision making.3One useful starting point is to distinguish between conduct that causes physical and material damage to the plaintiff’s land and conduct that interferes with the plaintiff’s enjoyment and comfort of land.

1) Physical Damage to Land

The courts take a strict approach to the infliction of physical damage to the plaintiff’s property. The infliction of physical damage is, in

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almost all circumstances, regarded as an unreasonable interference with the plaintiff’s use and enjoyment of land. Consequently, damage to the paintwork of buildings and chattels on the land caused by the discharge of pollutants, structural damage to premises caused by vibrations, crop damage caused by the drift of herbicide sprayed on the defendant’s property, water damage to the basement of a house caused by a blocked drain on the defendant’s land, damage caused by the escape of fire from the defendant’s land, and damage to trees and shrubs caused by polluting fumes from the defendant’s factory are all actionable. There is no need for continual interference with the property. An isolated incident causing physical damage may be sufficient. In Tock v. St. John’s (City) Metropolitan Area Board,4for example, the Supreme Court imposed liability in private nuisance when a blockage of the defendant’s sewer drains and a heavy rainfall combined to flood the basement of the plaintiff’s house.

The proof of physical damage is not conclusive of the issue of unreasonable interference. If the damage is trivial it may not be beyond the bounds of reasonable tolerance. There is also no liability where physical damage has arisen solely as a result of the abnormal sensitivity of the plaintiff’s land use. This proposition was established in Robinson v. Kilvert.5The defendant’s business of manufacturing paper boxes in the cellar of a building required a hot, dry environment. Although the heat was never more than eighty degrees Fahrenheit, it damaged a quantity of high-quality paper used in the plaintiff’s business on the ground floor. The Court held that there was no liability in private nuisance. The heat would not have affected the ordinary use of land. The plaintiff’s damage arose solely from the abnormal delicacy and sensitivity of his business. The ruling in this case may reflect an early reluctance to hold a defendant liable for unforeseeable damage. This may explain why Robinson has not been followed in subsequent cases where the defendant knew of the plaintiff’s sensitive operation and with malice or spite deliberately caused damage. Such a situation arose in Hollywood Silver Fox Farm v. Emmett.6The defendant real estate developer concluded that a sign indicating the proximity of the plaintiff’s silver fox farm to his residential real estate development was detrimental to its commercial success. The defendant asked the plaintiff to take it down. When the plaintiff refused to remove it, the defendant tried to persuade him to change his mind by discharging shotguns

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near the plaintiff’s farm. The defendant knew that the loud noise would disrupt the breeding season of the plaintiff’s extremely nervous and temperamental animals. The defendant argued that in normal circumstances the discharge of firearms is not an unreasonable interference with the enjoyment of land and the plaintiff’s loss arose solely from the hypersensitivity of silver foxes in the breeding season. Nevertheless, the defendant was found liable in private nuisance. The defendant’s knowledge of the plaintiff’s sensitive land use, combined with the malicious nature of the defendant’s conduct, made the interference unreasonable. One Canadian court has pushed this exception further and imposed liability in the absence of malice. The defendant was held liable for failing to take reasonable care by suspending the blasting of stumps on his land while the plaintiff’s fur-bearing animals were breeding. The defendant, at no inconvenience to himself, could have suspended the blasting for a month and avoided causing damage to the plaintiff.7

2) Interference with Enjoyment and Comfort of Land

A landholder is required to be much more tolerant of occasional interference in her comfort and enjoyment of land. The courts take a fairly robust approach to the extent of give and take that is required, particularly in an urban environment. All citizens must tolerate a certain level of noise, odour, and pollution. In order to prove a private nuisance, the plaintiff must show an interference that in all the circumstances of the case is unreasonable to the ordinary person. No protection is given to fastidious or delicate sensibilities.8The circumstances relevant to deciding if the interference is unreasonable include the character of the neighbourhood, the intensity of the interference, the duration of the interference, the time of day and the day of the week of the interference, the zoning designation of the area, the utility of the defendant’s activity, the nature of the defendant’s conduct, and the sensitivity of the plaintiff. None of these factors is conclusive but they do deserve some further comment.

a) The Character of the Neighbourhood

Nuisance is a relative concept dependent to a large extent on the kind of neighbourhood where the activity takes place. There is a famous distinction drawn in an old English case between Belgrave Square, a quiet residential area of London, and the industrial area of Bermondsey. The

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Court observed that "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey."9Every city has its Bel-grave Squares and its Bermondseys and the noise and smells that are tolerable in an industrial and commercial area may be excessive in a residential neighbourhood. The standard of tolerance may also be different in a rural area compared with that of an urban environment. The smells of some agricultural operations that may be reasonable in a rural environment may be intolerable in an urban residential area, and a reasonable level of noise in the city may be too much for a rural area. Those who live in a remote cottage area may have a reasonable expectation of even greater peace and quiet.

b) The Intensity of the Interference

There is no...

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