Law of nuisance essay

In the case study presented, the acts and omissions by MacDonald reasonably deny residents their right to enjoy peaceful and comfortable enjoyment of their lands. The scenario presents a collective and individual cases highlighting the impact of the farm to various individuals. Further, we can deduce from the facts of the case that MacDonald not only accumulated but further brought in slurry to his farm for his gain well in the knowledge of possible damage to the neighbourhood were the contents to escape from his land. Further, we can deduce that the claimants have a lawful interest from the lands they are residing on. The case scenario presents various elements of law namely; private nuisance, public nuisance, strict liability among other principles as discussed herein.

In this case, the community complaining will have to show an interference that has limited their enjoyment of the land. In most instances, interferences are indirect and a resultant of continuing events as opposed to a one-off incident. There are two broad categories of interference; physical and non-physical. In our particular case, we are dealing with a non-physical interference in the form of an awful smell, as discussed in Wheeler v J J Saunders2. In other instances, courts have allowed victims of emotional distress to file cases under interference (Hodas, 2013). In our particular scenario, MacDonald's acts would be deemed reasonable as the facts indicate he does this with a view to make profit. In other words, MacDonald's acts cannot be deemed malicious.

Public Nuisance Apart from the protection of private rights, Her Majesty's residents comfort is also guaranteed as a tort and a crime. The most notable elements of the breach of this nuisance are reasonable convenience and comfort of life of subjects of Her Majesty. Public nuisance presents those injured with an opportunity to claim both personal injuries and damage to property. One would further argue that the signboard advertising MacDonald's farm produce, namely sausages amount to throwing anything on the land, denying Mr. Green, the absolute master his ownership benefits. Given the fact that the question is to apply principles set in common law, under the case law, Ryland’s vs. Fletcher, it is important to note that the two case scenarios bear some similarities and were the scenario placed before a trial court, the doctrine of stare decis would guide the learned judges in addressing the matter.

In examining whether the actions by MacDonald amount to any breach, if any, under nuisance, it is important to consider two main elements. The court argued that the rock occurred naturally and was not brought into the land by the defendant (Kubica, 2017 p. In our case scenario, the exception does not suffice as MacDonald's further purchases slur from other pig farmers to his farm. As such, the slurry does not accumulate naturally, nor is it in it's state devoid the acts of MacDonald’s. Is the construction of the pig slurry non-natural use of the land? The test of non-natural use is where the use of the land ordinarily use would be construed to be special and one likely to increase danger to others.

On the other hand, the use of land by MacDonald's does not present general benefit for the community. Generally, the concept is treated as a tort and damages are awarded to a class of persons injured by the action. In other words, in considering whether one raising the cause of action has locus standi, the court considers whether the claimant has legal interests in the land. However, an exception was mad in Khorasandjian v Bush6 where the court of appeal argued that persons with no legal interests had the right to seek remedy in the event their enjoyment of the property was at stake. In this particular case, the claimant sought to have an injunction to prevent telephone harassment while living in her mother's house (Kubica, 2017 p.

The court held that despite having no legal interest to the property, she was justified in bringing the cause of action to a court of law. Green has a valid claim and can raise a valid cause of action One of the elements that Mr. Green must satisfy is being the current possessor at a particular time. Whereas he may not be the superior owner, he may have interests through freehold from the moment the land was acquired by Mr. Green. Mr. In other words, whereas nuisance is mainly concerned with the user's enjoyment of land being at stake, trespass considers possession being at stake ( Levine, Vetri, Vogel, and Gassama, 2016) Trespass by wrongful entry In this scenario, despite the fact that MacDonald has not personally trespassed, his pigs are deemed to have trespassed the beautiful garden of Mr.

Green, ruining his prized portion. The entry can be construes to be an act of wrongful encroaching of the property. The case would be different if MacDonald had sent someone to repair the fence and the individual trespassed the piece of land. Conclusion and Remedies Residents complaining of a foul smell Nature of Tort; Public nuisance From the above discussion, it is clear that certain elements of public nuisance have been proved in this particular case. In case of a civil suit, the neighbours may get monetary damages as well as abatement of the nuisance by injunction. Mr Green and his damaged garden and plants and the overhanging sign Mr. Green is entitled to the following remedies should he proceed to have a suit Injunction; Under the injunction, the court may prohibit MacDonald's pigs from crossing over to Mr.

Green's farm with the aim of preventing further trespass (Mandelker, 2014). From the facts, the rare crops stand endangered from the acts or omissions of MacDonald, thus the need of the remedy. Mr Brown and his washing and car Mr. Brown’s case introduces the doctrine of strict liability espoused in the case of Ryland’s vs. Fletcher, which has been discussed in detail above. In other words, Mr. Brown need not prove negligence and MacDonald cannot suffice the defence of acting with reasonableness nor taking measures he deemed reasonable to stop the event from occurring. Brown will need to prove damage to his washing, which may be compensated by a consideration of how much it had taken him to wash and a repaint of the car.

As such, Mr. Brown would have to furnish the court with documents of costs incurred in re-washing as well as repainting the car. Other damages may include general damages. Mrs Black and her house and garden Mrs Black falls under the same category as Mr. Emotional distress as well as other claims which are difficult to quantify in a monetary value. Mrs. Black will thus have the remedy of damages. Reference list Hensler, D. R.  World Academy of Science, Engineering and Technology, International Journal of Social, Behavioral, Educational, Economic, Business and Industrial Engineering, 10(10), pp. Levine, L. C. , Vetri, D. , Vogel, J. Fletcher from Nuisance.  NEL Rev. , 4, p. Serkin, C.  The Law of Property. Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice.