The Battle of Manywells Spring

Bernard Rudden

  • Private Property and Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply by Michael Taggart
    Oxford, 235 pp, £45.00, October 2002, ISBN 0 19 925687 X

An often cited and much admired article by Charles Reich that appeared in the Yale Law Journal for 1964 tells us that ‘property performs the function of maintaining independence, dignity and pluralism by creating zones within which the majority has to yield. Whim, caprice, irrationality and antisocial activities are given the protection of law; the owner may do what all or most of his neighbours decry.’ Is this the case? Hamlet thought there is nothing either good or bad, but thinking makes it so. Can our motives taint our otherwise lawful acts of ownership? If so, can those we have maliciously targeted prevent us from doing what they decry, or obtain compensation if it has been done to their detriment? For instance, we are all free to scrap our belongings, but suppose the owner of a celebrated modern portrait threatens to destroy it, solely in order to cause grief to both artist and sitter. If their offer to buy it is refused, can they get a court order to restrain its destruction? A landlord can normally serve a proper notice to quit, but can he do so for the sole reason that the tenant testified against him in a road accident case? If it is lawful to put up a fence in your own garden, can your neighbours complain because you do it only to spite them, or to make money by their paying you not to build? If you decline their offer, should a judge stop you erecting the fence or order you to take it down? In more general terms, to what extent does the moral condition of an owner give the law a reason for preventing, or penalising, otherwise lawful conduct?

That is the main issue, but a second is almost as important: within a workaday legal system, who is to provide the answer – courts, legislature, constitution or international treaty – and at what level of generality: by specific instances or by a general proposition? Unlike their brethren in many countries, English lawyers plump for anecdote rather than axiom, and generally prefer precedent to principle. A Scottish judge once observed of them that they face such issues by asking not ‘what shall we do this time?’ but ‘what did we do last time?’ This habit of mind, long taken for granted, may explain why, to this day, the professors in law schools and the judges in lawsuits return again and again to the late Victorian litigation between Bradford Corporation and Mr Edward Pickles. The case, or rather its name, is nowadays all too often invoked as a slogan, an allusion to an answer rather than an examination of the problem, and we have forgotten the actual matter of the dispute. Now, however, we can relive the tale, for Michael Taggart has been back to the archives of West Yorkshire and the House of Lords to find the local and personal details, as well as the state of the law at the time of litigation. His readable book also sets the problem in the wider contexts of public utility v. private freedom, and looks to the approaches of some other legal systems.

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