Hi Jason
The water that was extracted was water percolating
under the defendant's land, and it had been held in the earlier case of
Langbrook Properties v Surrey CC [1969] 3 All ER 1424 that even where
this resulted in the abstraction of water from underneath the claimant's
neighbouring land, with the consequence that the claimant's land or buildings
were damaged, no claim would lie. This was also consistent with
Popplewell v Hodkinson (1869) LR 4 Ex Ch 248, where it was
held that a landowner did not have the right to have his land
supported by water. Stephens holds that this is so even if
the claim is brought in negligence. Fleming was critical of
Stephens (104 LQR 183), and the Restatement, Second,
takes a different position (see
para 818).
Donal
----- Original Message -----
Sent: Tuesday, May 26, 2009 6:41 PM
Subject: ODG: Stephens v Anglian Water
Authority
Dear Colleagues:
I would be interested to find out your
thoughts on Stephens v Anglian Water Authority. I have a gut feeling
that it is wrongly decided since there seems to me to be a difference between
preventing something from getting to the claimant and taking away something
that is already on the claimants land. This distinction seems to be missed by
the court when they argue that English law gives a 'right' to a land-owner to
drain water from her land, which in the context of Bradford Pickles
seems better described as a privilege rather than a 'claim-right'.
Any
thoughts,
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435