Date: Andrew Tettenborn

From: Tue, 18 Nov 2008 16:16

Subject: Interference with property

Dear Andrew,

As I might have expected, an incisive answer. Interestingly enough, at least one case says there's no tort in the football scenario – see British Economical Lamp Co. v. Empire, Mile End (1913) 29 T.L.R. 386 (yes, I've got your property on my land, no you can't come and get it, I don't know if you can ever come, and yes, I'm feeling bloody-minded). And as I see it the difficulty is that you are preventing me exercising some of my rights in the football but by no means all of them: and it's quite clear that interfering with some rights only may well not be a conversion (e.g. the Mersey Ferry case, Fouldes v Willoughby (1841) 8 M & W 540). Come to think of it, would you say that if terrorists blow up the only entrance to a harbour they are guilty of converting every vessel in it that would have liked to get out but now can't?

Best wishes
Andrew

Andrew Botterell wrote:

It's a nice case. But I can imagine my students objecting as follows: suppose through your negligence your football lands in my back yard. And suppose I refuse to allow you to take it back (perhaps I think it poses a hazard to children playing nearby). I do allow you to play with it on my land, however, under my supervision, and while I allow you to do whatever you want to it – paint it, deflate it, what have you – I won't allow you to take it home with you. Aren't my actions inconsistent with your rights to the football? True, you are welcome to your football, in the sense that you can play with it (albeit under my supervision), but of course you can't go anywhere with it. But surely that is one mark of ownership. So it seems to me that I have done something that is inconsistent with your title to the football. And I'm not sure how this case differs from Club Cruise Entertainment.

Maybe it will be said that in my football case there was a taking of possession, so that I'm guilty of a trespass to chattels. But surely I didn't take it in any ordinary sense: I didn't actively take it from you, and since it found its way onto my land as a result of your negligence I'm not at fault for its being there either.  

Any thoughts?

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

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