I want to add a twist to Rob and Andrew's points. The sic utere tuo ut alienum non laedas ('so use your own as not to harm that of another') doctrine of natural property rights and nuisance helped both to generate rights and delimit their actionable extent in 19th-century land law. Viewed from this perspective, it is not the case that Bradford Corp v Pickles simply decrees that a neighbour has no property right to maintain the flow of subterranean waters towards his land, nor does the case state that every owner has a property right in such waters when they flow under his land. Nor does the case really turn on the possibility of additional rights or immunities if the interruption of flow of those waters is prompted by selfish or malevolent motives. Mr Pickles as is well known was not engaged in disinterested malice, but was a simple blackmailer motivated by greed, and so the true ratio of the case might be that self-seeking behaviour in use of your land, even if it involves predating upon your neighbour and forcing him to pay you to let him receive spring waters, is not unreasonable conduct in English law.

A riparian owner does not have a 'property right' in unimpeded flow of natural surface waters from neighbour's land either, but rather a sliding scale of rights to receive a flow subject to reasonable user by the neighbour. This is varied by the additional rule that landowners are allowed more subtractive user (to the detriment of neighbours) of indefinite waters than of waters in a defined channel, and also more use of underground than surface waters. The rights of neighbours to receive waters from adjoining closes whether surface, subterannean, definite or indefinite were subject to pragmatic and frankly utilitarian calculation in the context of each case. There were literally thousands of these cases in Victorian times, being one of the most litigated problems of the age, and despite attempts to apply damnum absque injuria, injuria sine damno, sic utere and other like formulations, no stable hierarchy of rights and their limits emerged. Rob may decry that rights cannot have a utilitarian basis; but 19th-century judges constantly said that they did. What is more, in establishing limits to the extent of rights and duties, those benighted judges often do seem to use control tests soaked in utilitarian calculation. The key case is Chasemore v Richards (1859) 7 HLC 349; 11 ER 140. Almost every judge in England ended up giving a judgment in this case, which Lord Wensleydale stated was the most important one he sat on in his entire career, and there are many possible rationes. Lord Wensleydale as Parke B had created the modern doctrine of natural rights to water flow bounded by reasonable use lmits, in Embrey v Owen in 1851. In 1859 in Chasemore he said that the same right pertained to subterannean water rights, save that reasonableness controls allowed far more interference. Lord Chelmsford by contrast stated that utility demanded that a right to receive underground waters was infeasible in limine because such a right would be unreasonably destructive of land use and impossible to police. It is possible to do Hohfeldian rights-immunities-liberties modelling to all this but it might just add another layer of description without baring the true grounds of the key decisions. The notorious instability of sic utere-based doctrines of water and land use gives some fuel to support a critique of utilitarian reasoning in law, but different regimes based on more stringent natural or appropriative rights have their own severe problems.

Andrew says that water is res nullius. Sometimes it acts like that, sometimes like res communes. You can't pump all the water from a river flowing through your land and sell it to a water company because severance divorced from your own land use is not reasonable. Moderns might call water neither res nullius nor res communes but a classic instance of a closed common-pool resource.

Does the preference for negligence-based reasoning in Cambridge Water give further reason to see Stephens as wrong?

Joshua

Robert Stevens wrote:

Serious answer.

(i) I have always thought that the doctrine of 'abuse of rights' is
mislabelled. It really concerns abuse of liberties. If you have a liberty
with respect to me to do X, I have no right with respect to you that you
refrain from doing X. If you violate a right, that is a wrong, and
actionable without the need for any further principle.

(ii) I don't agree with either Andrew T or (on one reading) Janet that
Bradford v Pickles concerned an "immunity". Bradford had no property right
in relation to the percolating water. Without a right to the unimpeded
flow of water, the loss they suffered was damnum absque injuria. If they
had had a property right such as an easement they would have won. But they
didn't. There was no prima facie wrong, so there was no immunity from
liability for having commited one.

(iii)  Just as we do not have absolute liberties in relation to how we
drive our cars, it is difficult to see why we should have absolute 
liberties to divert a water flow on our land. If the plaintiff can stand
upon another right in order to bring a claim, the absence of a right to
the flow of the percolating water is irrelevant. Taking an obvious
example, if the blocking of the flow foreseeably physically injures the
plaintiff, there seems to be no reason why liability should not be
imposed.

We do not, of course, have general rights good against others that they
confer benefits upon us. Andrew T's examples of throwing away the medicine
that you need and I have, or negligently failing to give someone a job are
of this kind. Stephens v Anglian Water Authority was not like this
however. By diverting the water the defendant damaged the plaintiff's
house. If I own an asset I have a right good against all others who can
reasonably foresee that their conduct may damage it that they take care
not to do so. This was not a case of someone failing to confer a benefit.

Now, one of the ways the law does impose positive duties on people to
confer benefits on others is the duty of one landowner to take positive
steps to provide support to his neighbour's land. i don't think Stephens v
Anglian was a case like this.

Reading it again, the CA seem to have confused the different senses in
which we use 'rights' and to have conflated damnum and injuria (the latter
happens all the time).  If it were the case that whenever someone else
intentionally caused me loss I could sue, then Bradford v Pickles would
involve an "immunity" and it would then have to be determined whether that
immunity covered all of the ways in which loss can be inflicted. That
isn't the law, nor should it be.

(iv) It might be thought objectionable that the defendant's liberty to
divert the water as he so chose was lost by the plaintiff's building a
house. This is however commonplace in law. In driving my car down the
Iffley Road in Oxford I owe no duty of care to someone living in Venezuela
as they are not within the class of persons who could possibly be injured.
If, however, they move to East Oxford and cross the road when I am
driving, I owe them a duty which I would not otherwise be under.

(v) I dissent from Andrew's characterisation of rights in the common law
as somehow absolute. Freedom for the pike is death for the minnow, and we
are all both pikes and minnows. Just as it is impossible to imagine a
world where our liberties were absolute, rights too have boundaries. The
most obvious example of the compromise the law makes in the drawing the
line between your liberty and my right is the duty that you *take care*
not to injure me. That duty is not absolute, nor indeed could it be
without abandoning the idea of a duty with a correlative right altogether.

RS

[Disclaimer: Written on a bus on the M40 with a child wailing next to me,
and so may make even less sense than usual.]

  

But you can cook hot dogs in it.  Andrew

    

 -----Original Message-----
From:    Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent:   28 May 2009 18:24
To:   Jason Neyers
Cc:   Andrew Tettenborn; obligations@uwo.ca
Subject:   Re: [Fwd: Re: Stephens v Anglian Water Authority]





      

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

Because you cannot drink brine.
RS


[CC]Office[/CC]
      

 [CC]Office[/CC]
This message and any attachment are confidential and may be privileged or
otherwise protected from disclosure.
If you are not the intended recipient, please telephone or email the
sender and delete this message and any
attachment from your system.  If you are not the intended recipient you
must not copy this message or attachment
or disclose the contents to any other person.

Clifford Chance LLP is a limited liability partnership registered in
England & Wales under number OC323571.
The firm's registered office and principal place of business is at 10
Upper Bank Street, London, E14 5JJ.
For further details, including a list of members and their professional
qualifications, see our website
at www.cliffordchance.com. The firm uses the word 'partner' to refer to a
member of Clifford Chance LLP or
an employee or consultant with equivalent standing and qualifications. The
firm is regulated by the Solicitors Regulation Authority. The Authority's
rules can be accessed by clicking on the following link:
http://www.sra.org.uk/code-of-conduct.page

Clifford Chance as a global firm regularly shares client and/or
matter-related data among its different
offices and support entities in strict compliance with internal control
policies and statutory requirements.
Incoming and outgoing email communications may be monitored by Clifford
Chance, as permitted by applicable law and regulations.

For further information about Clifford Chance please see our website at
http://www.cliffordchance.com or refer
to any Clifford Chance office.