From: Greg Bowley <greg.bowley@unb.ca>
Sent: Tuesday 23 July 2024 12:28
To: Sandy Steel; Donal Nolan; LCF Admin; Robert Stevens
Cc: Matthew Hoyle; Jason W Neyers; obligations
Subject: Re: Nuisance as an interference with the abstract
useability of land
On the pre-Fearn understanding on private
nuisance (that is as an actionable user of land that interferes with the
enjoyment by the plaintiff of rights relating to land, according to Newark),
there'd have been no difficulty discerning which of the scenarios identified by
Sandy would be actionable in private nuisance (only the placement of the cage
so as to obstruct the front door, whether used to imprison or not).
As to what right is interfered with by such conduct,
there's scant Canadian caselaw, but our practice here has aligned with the
reasoning in Fritz v Hobson for decades - in a former life as
a lawyer for expropriating public authorities, I have observed a practice of
retaining a 12 inch strip of publically-owned land between newly-constructed
city streets (formally designated as "highways") and adjacent private
lots as a means of controlling access to and from the highway from adjacent
land. The so-called "1 foot reserve" of non-highway was
explained to me by an aged city solicitor as intended to prevent the private
right of access to and from the highway (as designated) from arising.
On the BC case, it seems like a case of particular
harm arising from a public nuisance, and not a private nuisance of any sort
(fence or not). But I would have thought they'd find a private nuisance
on the basis of Antrim - the facts sound very similar.
Best,
Greg
GREG
BOWLEY
Associate Professor
Faculty of Law
University of New Brunswick
PO Box 4400
41 Dineen Drive
Fredericton NB Canada E3B 5A3
T
+1 506 458 7649
E greg.bowley@unb.ca
|
Sent: July 23, 2024 8:02 AM Subject: Re: Nuisance as an interference with the abstract
useability of land |
🍁External message: Use caution.
There’s a good discussion of the private right of
access to a public highway in Fritz v Hobson (1880) 14 Ch D 542. The
existence of such a right, of some scope at any rate, is well-entrenched in the
C19 authorities. See also:
Attorney-General
v. Conservators of the Thames 1 H. & M. 1 .
(Lord Hatherley): “I apprehend that the right of the owner of a private wharf,
or of a roadside property, to have access thereto, is a totally different right
from the public right of passing and repassing along the highway on the river.
The existence of such a private right of access was recognised in Rose
v. Groves . As I understand the judgment in that case, it went not
upon the ground of public nuisance, accompanied by particular damage to the
Plaintiff, but on the principle that a private right of the Plaintiff had been
interfered with. … Independently of the authorities, it appears to me quite
clear that the right of a man to step from his own land on to a highway is
something quite different from the public right of using the highway The public
have no right to step on to the land of a private proprietor adjoining the
road, and though it is easy to suggest metaphysical difficulties when an
attempt is made to define the private as distinguished from the public right,
or to explain how the one could be infringed without at the same time
interfering with the other, this does not alter the character of the right.”
The difficulty is in specifying the content of the
right accurately (once we abandon, as we must, the view that there must be a
physical invasion affecting the land itself). If A puts B in a police cell
without justification, A deprives B of the ability to access B’s land. I
suppose everyone is agreed that this is not a private nuisance, no more than if
A cuts off B’s leg and B cannot leave hospital for a month, thereby being
unable to use B’s land for ordinary purposes. Probably the right is a right not
to have access to one’s land blocked from a public highway by an obstruction on
the immediate boundary of one’s land. So if A puts B in a cage at B’s (only)
front door, this is potentially both a false imprisonment and a private
nuisance. I’m sure such a case will soon hit the law reports.
Sandy