Nuisance in Property Law

• The Doctrinal Casebook
• Chapter 2
• Nuisance in Property Law

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.

There is a third type of tort action that engages owners’ rights to exclude, but also—reciprocally—other owners’ rights to use their property as they wish: an action in nuisance. We will explore nuisance law as a “property tort” for what it can tell us about how judges in the mode of classical legal thought address the clash of private property rights between neighbours and to what extent courts were willing to enforce an owner’s right to exclude.

Our focus is on just one aspect of nuisance doctrine: the question of remedy. Once a nuisance has been established on the facts (as it is in all the cases we’ll study in this course), should courts grant an injunction to prevent the nuisance-causing activity or should courts award damages to compensate the plaintiff for their losses? The former option most effectively enforces the owner’s right to exclude, while the latter forces the owner to accept payment for an ongoing violation of that right.

Nuisance Law in an Industrializing Canada #

Widespread industrialization came somewhat late in Canada compared to England and the United States, where nuisance law was addressed earlier by the courts as a potential impediment to economic “progress”. As Jennifer Nedelsky explains:¹

By the late nineteenth century, industrialization and urbanization were changing the shape of Canadian society: between 1880 and 1920 the population doubled from 3,689,257 to 8,788,483; 74.35 per cent of the population were classified as rural by the census of Canada in 1881; by 1921 the percentage had decreased to 50.48. Capital investment in manufactures increased from $165,302,632 in 1880 to $2,923,667,011 in 1920 and the gross value of all manufactured products from $469,847,886 in 1880 to $3,706,544,997 in 1920. Manufacturing, once diffused, was concentrating in industrial towns. Factories increasingly replaced small workshops, and steam-powered engines brought noise as well as productivity. As the nuisances of industrialization increased, so did the costs of eliminating them. Manufacturing establishments, for example, were becoming sufficiently large and important to local economies that ordering them to take their nuisances elsewhere would have had serious consequences.

Like their English and American counterparts before them, common law courts in Canada struggled to adjudicate nuisance claims in this evolving context, which often pitted the demands of business and the growing influence of industry against the traditional property rights of neighbouring landowners. However, because industrialization came relatively late to Canada, Canadian courts confronted nuisance cases against the background of legal principles already developed elsewhere. A key question became whether Canadian courts would follow these established precedents—primarily from England—or chart their own path tailored to the Canadian context.

The legal question of what remedy the Canadian courts should apply in cases where a nuisance had already been proven by the plaintiff was a key point of conflict between industrialists and their neighbours. The English Court of Appeal’s decision in Shelfer v City of London Electrical Lighting Co. loomed large here. Traditionally, the common law afforded heavy priority to the absolute protection of private owners rights to use and enjoy their property, enforced by way of an injunction against the offending activities of neighbouring landowners. Industrialization brought increasing pressure on judges to soften this traditional bias in favour of injunctions and to allow for an award of damages in some cases. In Shelfer, the Court introduced a legal test that was apparently intended to give judges a workable guide for determining when damages were appropriate in lieu of an injunction.

The brief excerpt below from Shelfer reviews this legal test on remedy in nuisance. To what extent does the Shelfer test help to clarify when a landowner’s right to exclude should be enforced versus when a court should sanction a “paid-for” infringement of that right by awarding damages?

Nuisance and the Classical Style #

The test crafted by the English Court of Appeal in Shelfer was–as Lord Justice Smith himself seems to acknowledge–highly indeterminate. It left subsequent judicial decisions, and parties to a dispute, open to considerable uncertainty about the the circumstances under which a landowner’s right to exclude others from their land would be strictly enforced.

Our objective this week is to investigate how Canadian common law judges working in the classical style worked to address the indeterminacy created by Shelfer. In the two cases below — Black v Canadian Copper Co. and Canada Paper Co. v Brown — the judges are confronted with what looks like very similar facts: large-scale industrial pollution causing damage to close-by private landowners. And yet, the judges reach quite different conclusions on the question of appropriate remedy.

As you read these two cases against one another, ask yourself how the judges draw on classical common law reasoning to reach their decisions. In what ways do the judges interpret some land uses as “natural” and other “unnatural” and what role does this framing play in the decisions? Are you persuaded that one case is correctly decided and the other wrongly decided? Are the decisions necessarily irreconcilable?