Dear Colleagues:

 

I’m interested in what cases Donal had in mind that disprove that general view that a nuisance has to be an emanation into the land or an interference with a natural (riparian, access or lateral support of land/not buildings) or acquired right which attaches to the land. (If it is only the pornography shop cases, then I agree with others that they are probably better understood as public nuisances or as a special instance of an emanation).

 

More importantly, I do not see any of these rights being affected in Fern.

 

One way to square the result (as I take Jason Allen to be suggesting) is to say that the court has just created a new natural right not to be overlooked which was the very right that the eminent Dixon J (the second best judge of the 20^th century behind Cardozo), and the others comprising the majority, held did not exist in Victoria Park Racing.  I agree with Neil and Jeannie that Dixon, in keeping with the style of the times, merely tells us that the claim in nuisance fails because the right does not exist in English law; so it looks like it is merely arbitrary line drawing, but I am confident that Dixon could have said more about this if pressed to create a new natural right.

 

The burden then for those supporting the Fern judgment, and for the judges themselves, is to explain how this new natural right forms a consistent set with both the natural rights that have heretofore been recognized (riparian, access or lateral support of land/not buildings) and the natural rights which have not been recognized (percolating water as in Bradford, or sunlight or air in other cases of high authority). The difficultly is that I have not yet seen such an argument—one based merely on the supposition that natural rights are created where the deprivation of the amenity interferes with use and enjoyment is clearly not up to the task since it cannot coherently explain the no rights cases. In a system of justice, like cases must be treated alike or as Lord Atkin eloquently phrased it, in “English law there must be, and is, some general conception of … which the particular cases found in books are but instances.”

 

I also find Rob’s point about subjective feelings quite pertinent and in line with the famous (at least to Canadian lawyers) case of Shuttleworth v Vancouver General Hospital, [1927] 2 DLR 573, where the court found that the plaintiffs upset, and feelings of sadness, engendered by looking at a children’s infectious diseases hospital could not constitute a nuisance.

 

Sincerely,

 

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)