From: Tettenborn, A <>
Date: 28/05/2009 17:10:13 UTC
Subject: FW: [Fwd: Re: Stephens v Anglian Water Authority]

Hi all.

On Jason's point, the right I have is a right to *take* the water. It isn't a right *to* the water. Until somebody takes it the water, as I see it, is res nullius. It's rather like a wild rabbit on Jason's land: I have no right to it (and neither does Jason). But Jason is entitled to shoot it on his land, and if it runs onto my land I can shoot and eat it. The fact that it, like the water in Jason's example, came from Jason's land is irrelevant.

On Janet's point, as I see it there are rights and rights. My right to drive is effectively just a non-prohibition (for those who like jurisprudence a Hohfeldian liberty). But there's nothing wrong with a right that goes further and actually confers an immunity (a la Hohfeld) as well. I've said that I think the right to take percolating water is one: but it's possible to think of others. Take one case that has occasionally come up in the reports. You apply for a job with me. I ask for medical reports, which are impeccable (like the rest of your CV). If all had gone well I would have hired you: but I (or my servants) negligently read the medical reports as indicating some ghastly contagion, and don't. It's clear you can't sue me in negligence, however proximate you are and however foreseeable your loss. The reason is that I have an absolute right to decide who I won't hire [discrimination laws assumed inapplicable]: and if I can capriciously or maliciously refuse to hire then a fortiori I can do so negligently. And I can't see it should make any difference that my negligence went further and caused you psychological injury. My right still protects me and -- yes -- does and should take me outside the reach of negligence law.




From: Jason Neyers []

Sent: 28 May 2009 16:47

To: Tettenborn, A


Subject: Re: [Fwd: Re: Stephens v Anglian Water Authority]

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 <>

> To:   Donal Nolan <>

> CC:   Jason Neyers <>, ""

> <>

> References:   <>

> <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 <>

> >     *To:* <>

> >     *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

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> Exeter EX4 4RJ

> England



> Phone:


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

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

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> LAWYER, n.

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