Chapter 2 on Landscapes | An Open Legal Coursebook

Annapolis Group Inc. v Halifax Regional Municipality

Mon, 01 Jan 0001 00:00:00 +0000

Côté, Brown JJ. – #

I. Overview #

This appeal calls upon the Court to clarify the circumstances in which state regulation of land use may effect a de facto or (as we will refer to it) “constructive” taking of private property.

The appellant, Annapolis Group Inc., contends that the respondent, Halifax Regional Municipality, improperly used its regulatory powers to effectively seize Annapolis’ land for use as a public park without compensation. Halifax says that Annapolis’ claim is a veiled attempt to make taxpayers foot the bill for a decades-long development gamble. It sought summary dismissal of this part of Annapolis’ claim, while permitting other claims (for misfeasance in public office and unjust enrichment) to proceed to trial.

Austerberry v Corporation of Oldham

Mon, 01 Jan 0001 00:00:00 +0000

A., by deed, conveyed for value to trustees in fee a piece of land as part of the site of a road intended to be made and maintained by the trustees under the provisions of a contemporaneous trust deed (being a deed of settlement for the benefit of a joint stock company established to raise the necessary capital for making the road); and in the conveyance the trustees covenanted with A., his heirs and assigns, that they, the trustees, their heirs and assigns, would make the road and at all times keep it in repair, and allow the use of it by the public subject to tolls. The piece of land so conveyed was bounded on both sides by other lands belonging to A. The trustees duly made the road, which afforded the necessary access to A.’s adjoining lands. A. afterwards sold his adjoining lands to the Plaintiff (Austerberry), and the trustees sold the road to the Defendants [Corporation of Oldham], both parties taking with notice of the covenant to repair.

Belfast Corporation v OD Cars LTD

Mon, 01 Jan 0001 00:00:00 +0000

Viscount Simonds – #

[…]

Black v Canadian Copper Co.

Mon, 01 Jan 0001 00:00:00 +0000

Middleton J. — #

A large number of actions were brought, and many others threatened against the Canadian Copper Company, for damages supposed to have been sustained from vapours contained in metallurgical smoke issuing from the roast beds and smelter stacks of that company at Copper Cliff, near Sudbury. A motion was made to consolidate these actions resulting in the choice of four cases which were to proceed and to be regarded as test actions, the others remaining in abeyance in the meantime.

British North America Act, s 92

Mon, 01 Jan 0001 00:00:00 +0000

Exclusive Powers of Provincial Leglislatures #

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated, that is to say,

[…]

Property and Civil Rights in the Province.

Bundle of Sticks

Mon, 01 Jan 0001 00:00:00 +0000

When trying to explain the common law’s particular (and sometimes idiosyncratic) understanding of “ownership”, lawyers and judges frequently invoke the “bundle of sticks” metapho–as in, “ownership is like a bundle of sticks”–the “sticks” being the various property rights that make up the ownership “bundle”.

The idea behind the metaphor is that ownership is not really a homogeneous collection of rights that one either holds (ownership) or does not hold (no ownership). Instead, ownership is a malleable legal concept, difficult to pin down to any particular arrangement or bundle. One landowner might have an unrestricted right to use their land in any way they like, while another might have certain use rights taken out of their ownership bundle—say, by a restrictive covenant that binds and runs with the land. We would likely call both an “owner”, even though they hold different sets of legal entitlements in practice.

Canada Paper Co v Brown

Mon, 01 Jan 0001 00:00:00 +0000

The Chief Justice — #

For the reasons stated by my brother Anglin, I am of the opinion that this appeal should be dismissed with costs.

Idington J. — #

The respondent as the owner of property acquired some years before the appellant, in conducting its business as the manufacturers of pulp and paper, had ventured upon methods complained of herein, and had built thereon for himself an expensive home and surrounded it with everything to make that home comfortable and enjoyable.

Canada-United States-Mexico Agreement, Article 14

Mon, 01 Jan 0001 00:00:00 +0000

Article 14.8: Expropriation and Compensation #

1 No Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation), except:

(a) for a public purpose;

(b) in a non-discriminatory manner;

(c) on payment of prompt, adequate, and effective compensation in accordance with paragraphs 2, 3, and 4; and

(d) in accordance with due process of law.

Annex 14-6 Expropriation #

The Parties confirm their shared understanding that:

Canadian Pacific Railway Co. v Vancouver (City)

Mon, 01 Jan 0001 00:00:00 +0000

McLachlin C.J.C. — #

1. Introduction #

Over a century ago, in 1886, the provincial Crown granted the Canadian Pacific Railway Company (”CPR”) a corridor of land for the construction of a railway line from False Creek, in the City of Vancouver (”City”), south to Steveston, on Lulu Island (named after Miss Lulu Sweet, a young actress in the first theatrical company to visit British Columbia). It is this corridor of land, now known as the “Arbutus Corridor”, that lies at the heart of this appeal.

City of Toronto v Board of Trustees of R.C. Separate Schools for City of Toronto

Mon, 01 Jan 0001 00:00:00 +0000

Viscount Cave L.C. — #

This appeal raises some important questions as to the relative rights of a School Board acting under the Separate Schools Act of Ontario and a City Council acting under the Municipal Act of that Province. By virtue of the Separate Schools Act, the Board of Trustees of the Roman Catholic Separate Schools for the city of Toronto (who will be referred to in this judgment as the “School Board”) have power to acquire or rent school sites and to build and carry on schools. By virtue of the Municipal Act, the Corporation of the city of Toronto is empowered to prohibit by by-law the use of land or the erection or use of buildings within any defined area for any purpose other than that of a private residence. The question is whether, in the circumstances of this case, a by-law made by the Corporation under the latter statute is enforceable in respect of a site purchased by the School Board for school purposes.

Cobalt (Town) v Coleman (Township)

Mon, 01 Jan 0001 00:00:00 +0000

Trotter J.A. – #

A. Introduction #

This appeal concerns a tract of land (“the property”) situated in the Township of Coleman (“Coleman”), in the District of Timiskaming. The property is owned by the nearby Town of Cobalt (“Cobalt”). Recently, Cobalt has been using the property to conduct a large-scale aggregate extraction operation. Coleman objects to this use, alleging that it is not compliant with its current zoning by-law.

Committee for the Commonwealth of Canada v Canada

Mon, 01 Jan 0001 00:00:00 +0000

In this case, the Supreme Court of Canada addressed the question of whether restrictions on political activity (engaging passers-by and distributing leaflets to recruit new members) at an airport owned by the federal government were in violation of the respondents’ Charter-protected freedom of expression. In the course of their decisions, the judges discussed some of the broader principles applicable to the limits that government can place on access to and the use of “public” property. The decision below is a short excerpt from Justice L’Heureux-Dubé’s opinion concurring with the majority’s finding that the respondents’ freedom of expression was infringed.

Expropriation

Mon, 01 Jan 0001 00:00:00 +0000

Remedies in nuisance are one legal tool used by property owners—with mixed success—to stop their neighbours from adversely affecting use and enjoyment of the owner’s land. Nuisance, in other words, is one means to exclude others from doing something that limits owners’ freedom related to property. This means of exclusion, however, unavoidably limits the freedom of others to use their land as they choose. In these cases, the courts must choose not only whose rights should win out but also find some way to address the fundamental dilemma of conflicting freedoms inherent in legal liberalism.

Expropriation Act

Mon, 01 Jan 0001 00:00:00 +0000

3(1)(c) “expropriate” means the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers;

Harrison v Carswell

Mon, 01 Jan 0001 00:00:00 +0000

Dickson J. — #

The respondent, Sophie Carswell, was charged under The Petty Trespasses Act, R.S.M. 1970, c. P50, with four offences (one on each of four days) of unlawfully trespassing upon the premises of the Fairview Corporation Limited, trading under the firm name and style of Polo Park Shopping Centre, located in the City of Winnipeg, after having been requested by the owner not to enter on or come upon the premises. The appellant, Peter Harrison, manager of Polo Park Shopping Centre, swore the informations. The charges were dismissed by the Provincial Judge but on a trial de novo in the County Court Mrs. Carswell was convicted and fined $10 on each of the charges. The convictions were set aside by the Manitoba Court of Appeal [1974] 4 W.W.R. 394 (Freedman C.J.M. and Matas J.A., with Guy J.A. dissenting) and the present appeal followed by leave of this Court.

Hodge v the Queen

Mon, 01 Jan 0001 00:00:00 +0000

Judgement of the Lords of the Judicial Committee of the Privy Council #

The Appellant, Archibald Hodge, the proprietor of a tavern known as the St. James Hotel, in the city of Toronto, and who, on the 7th May 1881, was the holder of a license for the retail of spirituous liquors in his tavern, and also licensed to keep a billiard saloon, was summoned before the Police Magistrate of Toronto, for a breach of the Resolutions of the License Commissioners of Toronto, and was convicted on evidence sufficient to sustain the conviction if the magistrate had authority in law to make it.

House of Commons Debate (Rivers and Streams Bill, 1881)

Mon, 01 Jan 0001 00:00:00 +0000

Mr. McCarthy — #

When the House rose at six o’clock, I was proceeding to consider that part of the Bill which deals with compensation. Perhaps I might first be permitted to state, however, what I understand to be the meaning of the word “compensation,” when applied to the sovereign right of expropriation. Now, I do not pretend to dispute, and I am quite willing to admit in the amplest possible manner, so far as my judgement goes, that this Act of Parliament was, subject to one consideration, within the power of the Local Legislature. If the one consideration be overlooked there is power in the Local Legislature as in every other sovereign body–and the Local Legislature is sovereign so far as its jurisdiction extends–to expropriate property for public purposes. But, Sir, as I understand the doctrine of expropriation, as we call it, or as it is better known on the other side of the line, the exercise of its power of eminent domain, there are two limitations to the exercise of that power.

Keppell v Bailey

Mon, 01 Jan 0001 00:00:00 +0000

The Facts #

The Beaufort Ironworks entered into an agreement with the shareholders of the Trevil Railway, which was constructed to transport limestone from Trevil Quarry to the Ironworks for use in their furnaces. The covenant stipulated that Beaufort would continue to source all of its limestone from Trevil Quarry, thus providing the initial financial incentive to build the railway. In the course of his decision, Lord Chancellor Brougham described the terms of the covenant thus:

Manitoba Fisheries Ltd. v R

Mon, 01 Jan 0001 00:00:00 +0000

Ritchie J.:– #

This is an appeal from a judgment of the Federal Court of Appeal [1978] 1 F.C. 485, 78 D.L.R. (3d) 393, 17 N.R. 28 dismissing an appeal from a judgment rendered at trial by Collier J. [1977] 2F.C. 457, 72 D.L.R. (3d) 756 whereby he dismissed the action brought by the appellant for a declaration that it was entitled to compensation for the loss suffered by reason of the provisions of the Freshwater Fish Marketing Act,R.S.C. 1970, c. F-13 (hereinafter referred to as “the Act”).

Mariner Real Estate Ltd v Nova Scotia (Attorney General)

Mon, 01 Jan 0001 00:00:00 +0000

Cromwell J.A. (Glube C.J.N.S. concurring) — #

I. Introduction #

This case involves a collision of important interests. On one side, there are the interests of the respondents in the enjoyment of their privately owned land at Kingsburg Beach. On the other is the public interest in the protection and preservation of environmentally fragile and ecologically significant beach, dune and beach ridge resources. In the background of this case is the policy issue of how minutely government may control land without buying it. But in the foreground is the narrower issue of whether the stringent land use regulations applied by the Province to the respondents’ lands is an expropriation of them within the meaning of the Expropriation Act, R.S.N.S. 1989, c. 156.

McLaren v Caldwell et al

Mon, 01 Jan 0001 00:00:00 +0000

Background to the Case #

Over the course of the nineteenth century, access to waterways in Upper Canada and elsewhere in the country became an integral part of the lumber industry and a primary means to bring timber from logging operations to sawmills and other points of market. From one perspective, these waterways were akin to other types of public infrastructure (like roads and railways) necessary for rapidly expanding natural resource extraction and, eventually, industrialization. In 1847, provincial legislation was passed to help ensure access to waterways in Upper Canada by lumber workers. The legislation stated that:¹

Metalclad Corporation v The United Mexican States

Mon, 01 Jan 0001 00:00:00 +0000

The Tribunal — #

C. NAFTA, Article 1110: Expropriation #

NAFTA Article 1110 provides that “[n]o party shall directly or indirectly … expropriate an investment … or take a measure tantamount to … expropriation … except: (a) for a public purpose; (b) on a non- discriminatory basis; (c) in accordance with due process of law and Article 1105(1); and (d) on payment of compensation …” “A measure” is defined in Article 201(1) as including “any law, regulation, procedure, requirement or practice”.

Monsanto Canada Inc v Schmeiser

Mon, 01 Jan 0001 00:00:00 +0000

McLachlin C.J.C. and Fish J. — #

I. Introduction #

This case concerns a large scale, commercial farming operation that grew canola containing a patented cell and gene without obtaining licence or permission. The main issue is whether it thereby breached the Patent Act, R.S.C. 1985, c. P-4. We believe that it did.

In reaching this conclusion, we emphasize from the outset that we are not concerned here with the innocent discovery by farmers of “blow-by” patented plants on their land or in their cultivated fields. Nor are we concerned with the scope of the respondents’ patent or the wisdom and social utility of the genetic modification of genes and cells — a practice authorized by Parliament under the Patent Act and its regulations.

Noble et al v Alley

Mon, 01 Jan 0001 00:00:00 +0000

This case addressed a discriminatory restrictive covenant attached to land forming part of a summer resort development called the Beach O’Pines. The covenant, in clause (f), prohibited the sale, transfer or lease of the land to, or use or occupancy by, individuals of Jewish “race or blood” or people of colour, and expressed an intention to restrict ownership of land in the resort development to “persons of the white or Caucasian race not excluded by this clause.”

North American Free Trade Agreement, Article 1110

Mon, 01 Jan 0001 00:00:00 +0000

Article 1110: Expropriation and Compensation #

1 No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except:

(a) for a public purpose;

(b) on a non-discriminatory basis;

(c) in accordance with due process of law and Article 1105(1); and

(d) on payment of compensation in accordance with paragraphs 2 through 6.

Nuisance in Property Law

Mon, 01 Jan 0001 00:00:00 +0000

One right in particular, some argue, is fundamental to private property: the right to exclude others from interfering with the owner’s use and enjoyment of their land, other tangible things and even intangibles like knowledge goods. The common law has devised several remedies to enforce owners’ right to exclude. We have already seen two examples of this. In Harrison v Carswell, the mall owner brought an action in trespass against the picketer Sophie Carswell to exclude her from the mall sidewalk, while the plaintiff in Moore made a claim in conversion in his attempt to exclude the defendants from using his cells after they were extracted from his body. Both of these are causes of action in tort designed to protect the right to exclude.

Patent as Exclusion

Mon, 01 Jan 0001 00:00:00 +0000

Monsanto Patent for glyphosate-resistant plants (US version)

A patent is effectively a statutory right—created and enforced under the federal Patent Act, RSC 1985, c P-4—to exclude others from the products of cultural, scientific and technological invention. Patents given their “owners” a time-limited, exclusive right to make, construct, use and sell the subject matter of the patent.

The basic rationale behind patent rights is one about economic incentives. As an intangible good, the inventive idea or design that motivates a patent is by nature non-excludable: once the invention has been created and made public, it is essentially costless for others to reproduce that idea or design in order to make their own products. Because inventions often require considerable up-front and sometimes risky investments, the rationale goes, exclusive patent protections are needed in order provide creators with sufficient financial incentives to create in the first place. According to this argument, if the right to exclude via patent did not exists, creators would have no motivation to produce their intentions and society would suffer as a result.

Pennsylvania Coal Co. v Mahon

Mon, 01 Jan 0001 00:00:00 +0000

Holmes J. — #

This is a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house. The bill sets out a deed executed by the Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but, in express terms, reserves the right to remove all the coal under the same, and the grantee takes the premises with the risk, and waives all claim for damages that may arise from mining out the coal. But the plaintiffs say that, whatever may have been the Coal Company’s rights, they were taken away by an Act of Pennsylvania, approved May 27, 1921, P.L. 1198, commonly known there as the Kohler Act. The Court of Common Pleas found that, if not restrained, the defendant would cause the damage to prevent which the bill was brought, but denied an injunction, holding that the statute, if applied to this case, would be unconstitutional. On appeal, the Supreme Court of the State agreed that the defendant had contract and property rights protected by the Constitution of the United States, but held that the statute was a legitimate exercise of the police power, and directed a decree for the plaintiffs. A writ of error was granted bringing the case to this Court.

Perry v Clissold

Mon, 01 Jan 0001 00:00:00 +0000

PRIVY COUNCIL

Perry Appellant; and Clissold and Others Respondents.

On appeal from the High Court of Australia.

14 December 1906

The Lord Chancellor, The Earl of Halsbury, Lord Macnaghten, Lord Davey, Lord Robertson, Lord Atkinson, Sir Ford North, Sir Arthur Wilson.

The judgment of their Lordships was delivered by

Lord Macnaghten – #

This was an appeal from a judgment of the High Court of Australia, dated the 20th of June 1904, reversing a judgment of the Supreme Court of New South Wales. It raised a question under the Lands for Public Purposes Acquisition Act 1880 (44 Vict. No. 16), now superseded by the Public Works Act 1900, which consolidates the law on the subject.

Planning Act

Mon, 01 Jan 0001 00:00:00 +0000

Continuance of lawfully existing non-conformities

86(1) Subject to sections 88 to 91, the enactment of a new zoning by-law does not affect any of the following that lawfully existed before the enactment of the new zoning by-law:

(a) a building;

(b) a parcel of land;

Protection of Property Act

Mon, 01 Jan 0001 00:00:00 +0000

2 In this Act,

[…]

(b) “occupier” includes

(i) a person who is in possession of premises, or

(ii) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

[…]

(d) “premises” means lands and structures, or either of them, and includes trailers and portable structures designed or used for residence, business or shelter.

R v Cappy

Mon, 01 Jan 0001 00:00:00 +0000

Henderson J.A. (dissenting) – #

On 15th February 1951 the respondents purchased the lands known as Oakwood Stadium and on 19th May 1951, they began to promote and conduct in the stadium stock car races.

Oakwood Stadium consists of an oval open space upon which there is sitting accommodation partly in open stands and partly in a covered stand. This stadium at the time of the passing of the by-law in 1948 and prior to the occupation of the respondents in February 1951 was suitable for permitting members of the public to witness various kinds of sport contests including the playing of soccer, rugby and track and field events. Prior to February 1951 there was a cinder track 18 feet wide around the perimeter of the playing field suitable for foot-races.

Re Drummond Wren

Mon, 01 Jan 0001 00:00:00 +0000

Mackay J. — #

This is an application brought by Drummond Wren, owner of certain lands registered in the Registry Office for the County of York, to have declared invalid a restrictive covenant assumed by him when he purchased these lands and which he agreed to exact from his assigns, namely, — “Land not to be sold to Jews or persons of objectionable nationality.”

The application is made by way of special leave and pursuant to s. 60 of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 152, and Rules 603 and 604 of The Rules of Practice and Procedure.

Restrictive Covenants and Public Policy

Mon, 01 Jan 0001 00:00:00 +0000

Certain “private” forms of land-use regulation are still in widespread use. One of the most pervasive—but often least noticed—is the restrictive covenant.

From one point of view, restrictive covenants look like a fairly straightforward promise by one landowner to another—a promise to refrain from doing something on one’s own land. One landowner might promise not to cut down the trees in their yard, for example, or promise not to paint their house a garish shade of bright green. But from a legal perspective, restrictive covenants are much more than this. Not only do covenants represent a sort of contractual promise between parties, they help to define the durable “bundle of rights” in the land itself—that is, covenants are said to run with the land and can, at least in theory, long outlast the original parties to the covenant. This possibility raises some difficult questions for courts in how they define the basic character of covenants along with their consequences.

Riparian Rights

Mon, 01 Jan 0001 00:00:00 +0000

A riparian owner is the owner of land bounding upon a river or other watercourse. The traditional presumption of English common law is that a riparian owner owns the bed of a non-navigable river or stream to the centre of the watercourse: ad medium filum aquae. Consequently, a riparian owner who holds land on both sides of a river considered “non-navigable” owns the entire riverbed and has exclusive rights to the river’s use .

Rivers and Streams Act

Mon, 01 Jan 0001 00:00:00 +0000

1. All persons shall, subject to the provisions in this Act contained, have, and are hereby declared always to have had, floating down during the spring, summer and autumn freshets, the right to, and may float and transmit saw-logs and all other timber of every kind, and all rafts and crafts, down all rivers, creeks and streams; and no person shall by felling trees or placing any other obstruction in or across any such river, creek or stream, prevent the passage thereof; and in case it may be necessary to remove any obstruction from such river, creek or stream, or construct any apron, dam, slide, gate-lock, boom, or other work therein or thereon, necessary to facilitate the floating and transmitting such saw-logs and other timber, rafts or crafts, down the same, then it shall be lawful for the person requiring so to float and transmit such saw-logs and other timber, rafts and crafts, and it is hereby declared always to have been lawful to remove such obstruction, and to construct such apron, dam, slide, gate-lock, boom or other work necessary for the purposes aforesaid, doing no unnecessary damage to the said river, creek or stream, or to the banks thereof.

Saint-Romuald (City) v Olivier

Mon, 01 Jan 0001 00:00:00 +0000

Binnie J. — #

The Court’s objective on this appeal is to find the proper balance between an individual’s right to the continued use and enjoyment of his or her property and the power of the community, expressed through the local municipality, to enhance, by changing the land use regulations, the amenities of surrounding and other affected landowners. As the case arises in Quebec, the specific issue raised is the limitation of previously acquired rights under the Civil Code. However, as this is a public law matter, the principles of land use regulation applicable in the common law provinces concerning legal non-conforming uses are also relevant.

Shelfer v City of London Electrical Lighting Co.

Mon, 01 Jan 0001 00:00:00 +0000

The defendant in this case, the City of London Electric Lighting Company, operated large engines and other heavy machinery that caused damage to the foundations of a pub, the Waterman’s Arms, leased by the plaintiff, Shelfer, as well as a lot of noise and other “annoyances”. There was no question about the existence of the nuisance—the only issue before the court was what type of remedy should be available to the plaintiff.

Sources of Public Policy

Mon, 01 Jan 0001 00:00:00 +0000

One of the more remarkable aspects of the decision in Re Drummond Wren is its reliance on different sources of domestic and international law to ground the Court’s finding that the restrictive covenant in issue was contrary to public policy. As you analyze the 3000 Funston Street problem for this week, consider what role the following sources might play.

Article 11 of the United Nations General Assembly’s International Covenant on Economic, Social and Cultural Rights (1966) recognizes:

Trespass to Land

Mon, 01 Jan 0001 00:00:00 +0000

The name of the most familiar tort protecting real property, trespass, was originally the name of an entire family of actions that first emerged in the 12th and 13th centuries. A plaintiff would commence his case by going to the royal Chancery and purchasing a writ commanding the defendant to come before the courts and explain why he had done such-and-such a thing against the plaintiff’s rights. The Latin phrases used by the Chancery clerks who filled out the writs – and which the royal courts insisted on when hearing a case – came to define individual forms of action.

Tulk v Moxhay

Mon, 01 Jan 0001 00:00:00 +0000

In the year 1808 the Plaintiff, being then the owner in fee of the vacant piece of ground in Leicester Square, as well as of several of the houses forming the Square, sold the piece of ground by the description of “Leicester Square garden or pleasure ground, with the equestrian statue then standing in the centre thereof, and the iron railing and stone work round the same,” to one Elms in fee: and the deed of conveyance contained a covenant by Elms, for himself, his heirs, and assigns, with the Plaintiff, his heirs, executors, and administrators, “that Elms, his heirs, and assigns should, and would from time to time, and at all times thereafter at his and their own costs and charges, keep and maintain the said piece of ground and square garden, and the iron railing round the same in its then form, and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in neat and ornamental order; and that it should be lawful for the inhabitants of Leicester Square, tenants of the Plaintiff, on payment of a reasonable rent for the same, to have keys at their own expense and the privilege of admission therewith at any time or times into the said square garden and pleasure ground.”

Victoria Park Racing and Recreational Grounds Co Ltd v Taylor

Mon, 01 Jan 0001 00:00:00 +0000

Latham C.J. — #

This is an appeal from a judgment for the defendants given by Nicholas J. in an action by the Victoria Park Racing and Recreation Grounds Co Ltd against Taylor and others.

The plaintiff company carries on the business of racing upon a racecourse known as Victoria Park. The defendant Taylor is the owner of land near the racecourse. He has placed an elevated platform on his land from which it is possible to see what takes place on the racecourse and to read the information which appears on notice boards on the course as to the starters, scratchings, etc, and the winners of the races. The defendant Angles stands on the platform and through a telephone comments upon and describes the races in a particularly vivid manner and announces the names of the winning horses. The defendant the Commonwealth Broadcasting Corporation holds a broadcasting licence under the regulations made under the Wireless Telegraphy Act 1905-1936 and carries on the business of broadcasting from station 2 UW. This station broadcasts the commentaries and descriptions given by Angles. The plaintiff wants to have the broadcasting stopped because it prevents people from going to the races and paying for admission. The evidence shows that some people prefer hearing about the races as seen by Angles to seeing the races for themselves. The plaintiff contends that the damage which it thus suffers gives, in all the circumstances, a cause of action.