Dear Colleagues:
I can't accept that the US rule is correct either. Apart from the
extortion fact pattern (which relies on a different--gratuitous
harm--principle), I do not see how your use of your land can
dictate the uses to which I can put mine, that is expropriation.
Each of us is protected by the law of nuisance from substantial
interferences, so if the manufacturing makes it so that no one
could sleep on my property then it is a nuisance even in an
industrial area and even if the industry was there first. I know
that Richard thinks that the law is based on equal freedom and
this seems to be the only rule that respects that. I note that
this is Beever's position as well in his monograph cited by the
UKSC (at pages 30-31; 65-67). I would also suggest that the best
interpretation of the live and let live rule is somewhat narrower
than has been suggested. Given the situations that are originally
given as examples in
Bamford (emptying cesspools, making
repairs, burning weeds), the principle seems to deal with
situations where the interference could be argued to be
substantial but where there is an element of reciprocity in that I
as a neighbor will one day have to make the same or similar
repairs, install a pool (to use a modern example), etc in the
future. These things therefore are not nuisances if they are
conveniently done (and the character of the neighborhood helps us
to determine the nature of these acts).
I would also point out that, under the influence of economic
analysis, people have come to view these situations (Factory vs
Sleep) as situations of reciprocal harm but from the legal
prespective this cannot be true (unless me suing you for battery
is a situation of reciprocal harm). Only the factory is emitting
things (particles, waves, etc) that enter into my property, my
sleeping is not invading the property of the factory. There is a
real asymmetry here that is forgotten if we just look at competing
uses.
Cheers,
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435
On 28/02/2014 12:57 PM, Wright, Richard wrote:
I
was not indicating agreement with everything said in every
opinion, all of which admit being contemplative rather than
prescriptive on many of the issues. For example, I too do not
agree that coming to the nuisance should be an available
defense merely because the claimant seeks to change the use
of its land from some prior use. I have always especially
disliked Denning's opinion on this and on what constitutes a
"reasonable use" in Jackson v. Miller. This would make no
sense at all for previously undeveloped land. Rather, the
coming to the nuisance defense should be allowed, as in the
USA, only if the claimant's use is one entirely inappropriate
given the existing character of the area (e.g., an attempt to
build a residence [and then sue for a nuisance] in the midst
of a district dedicated to manufacturing etc. or if (as one of
the judges noted) the claimant moved to the locale and claimed
a nuisance solely for the purpose of extorting money from the
defendant. The character of the land is and should be
determinative, as Jason seems to admit, under the "give and
take"/"live and let live" rule: what is necessary for people
to live and do what is normal in this area given the character
of the locale (city v wilderness, manufacturing v residential,
etc.) and thus not a nuisance, and what is not necessary given
the character of the locale and furthermore constitutes
a substantial interference with uses that are proper given the
character of the locale. What I am happy to see the court put
down is the unfortunate but understandable inclination of some
writers to interpret "reasonable user" instead as a negligence
analysis focused on the defendant's conduct or activity, with
resort even to a Hand formula cost-benefit analysis.
On Fri, Feb 28, 2014 at 11:03 AM, Jason Neyers
<jneyers@uwo.ca>
wrote:
Dear Colleagues:
Having just read the decision, I can agree with Phillip
that it is important but cannot agree with Richard that
it is useful. I think that on almost every issue (except
the issue of prescription) the court gets the law wrong
in the sense that the answers given do not fit with the
most coherent understanding of the law of nuisance to be
gleaned from the cases. For example, the court seems to
treat the issue of the character of the area as some
sort of trump card, ie if you prove it fits the
character then there cannot be a nuisance whereas the
better understandable is that the character of the area
is merely the context in which one: (1) decides whether
the interference was substantial and hence unreasonable;
(2) does a analysis of necessary acts conveniently
done/give and take between neighbors. Similarly, coming
to the nuisance is now a defence if the claimant seeks
to change the uses of their land [ 56] which allows
defendants to effectively expropriate others land uses
without compensation and without having gained an
prescriptive easement through 20 years use---this
despite earlier claims that such a concept was a "old
notion ... long since exploded". Moreover, this is
seemingly done to give content/save from scourn a
dissent of Denning! Finally, the court effectively
overules
Shelfer and states that public
interest is a very important issue that is to be
addressed by the judge in deciding to issue an
injunction despite the fact that, as some of their
Lordships point out, judges will not often have the
available evidence and despite the fact that their is a
defence of statutory authority which exists to protect
the public interest (and a well understood doctrine of
injurious affection to make compensation to the public
following on from that). Moreover, trial judges are
given no metric as to how to balance interests and
rights. Are ten peoples jobs worth one private right?
Are football matches? If this is the law, then
defendants are better off not pleading statutory
authority and better just pleading public interest in
most cases.
As I jokingly mentioned to a colleague, I will enjoy
heaping scorn on Lord Neuberger and his "have his cake
and eat it too" judgment in
Coventry where
everything is relevant at at least some of the time on
some point in the nuisance analysis. Can anything
not
be relevant anymore?
Sincerely,
Jason