Does that make sense to you?

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

Donal Nolan wrote:

> 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 -----

>     *From:* Jason Neyers <mailto:jneyers@uwo.ca>

>     *To:* obligations@uwo.ca <mailto:obligations@uwo.ca>

>     *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

>