But why a right to support from brine but not from water?

Why does your 'right' entitle you to take water which emanates from my

land, do I not have a right to that water? If the defendant bottled the

water and I could prove that it came from under my land should I not

have some sort of tort claim?

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

Andrew Tettenborn wrote:

> I'm not sure if I go along with Janet. A right to do something, but

> only if it's reasonable, or provided it has no foreseeable

> consequences as regards someone else, isn't a very useful right. One

> of the powerful features of the common law is that its rights are

> strong ones: rights to act in a particular way /despite/ any effects

> on others. I see nothing wrong in saying that if you are diabetic and

> I own the only bottle of insulin for 100 miles, I should be entitled

> to take it, throw away the contents and laugh. The fact that I know

> this will kill you is beside the point. Indeed, it seems to me that if

> you say anything else you are resurrecting the "abuse of rights"

> analysis roundly, and in my view rightly, rejected in Pickles.

>

>

> Andrew

>

> -------- Original Message --------

> Subject:        Re: Stephens v Anglian Water Authority

> Date:        Thu, 28 May 2009 14:16:21 +0100

> From:        Janet O'Sullivan <jao21@cam.ac.uk>

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

> CC:        Jason Neyers <jneyers@uwo.ca>, "obligations@uwo.ca"

> <obligations@uwo.ca>

> References:        <4A1C29D8.8050708@uwo.ca>

> <4EE0EF6A1AED4023BCFA324D8A7F21A3@LENOVO1143D358>

>

>

>

> Dear all,

>

> I have always thought that Stephens is wrongly decided, because it

> over-stretches the Bradford v Pickles "principle" that if the defendant

> has "the right" to extract the water then the claimant must have "no

> right" to complain. It is one thing for there to be no action in

> nuisance following Bradford v Pickles, but quite another thing for the

> same reasoning to deny a duty of care in negligence.  Worse, the Court

> of Appeal suggested that the result would have been the same even if the

> claimant had suffered personal injury: "It seems to us an inevitable

> logical consequence of the reasoning of their Lordships in Bradford

> Corporation v. Pickles that the claim in that case would have no less

> failed if the defendant's activities had resulted in subsidence of

> buildings or even personal injury".  And following the fact pattern of

> the case, this would presumably still apply even if the defendant had

> been warned in advance of the risk of personal injury and carried on

> regardless!

>

> Best wishes

> Janet

>

> 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

> >

>

> .

>

>  

>

> --

> Andrew M Tettenborn

> Bracton Professor of Law, University of Exeter

>

>

>

> Snailmail:

>

> Law School

> University of Exeter

> Rennes Drive

> Exeter EX4 4RJ

> England

>

>

> Phone:

>

> Tel:             01392-263189 (int +44-1392-263189)

> Fax:             01392-263196 (int +44-1392-263196)

> Cellphone:       07870-130528 (int +44-7870-130528)

>

>

>

> LAWYER, n.

> One skilled in circumvention of the law. (Ambrose Bierce, 1906).

>