Not particularly.  I would be inclined towards the Restatement position

myself, but I'm conscious of the fact that the case lies at the intersection

of two complex areas of real property law, concerning rights of support and

water rights, so I may be missing something.

Donal

----- Original Message -----

From: "Jason Neyers" <jneyers@uwo.ca>

To: "Donal Nolan" <donal.nolan@law.ox.ac.uk>

Cc: <obligations@uwo.ca>

Sent: Wednesday, May 27, 2009 4:19 PM

Subject: Re: Stephens v Anglian Water Authority

> 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

>