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.
The impact of the Industrial Revolution was nowhere more evident than in Bradford. From a quiet market centre of six thousand inhabitants it became the fastest-growing town in Britain, overcrowded, filthy and lacking the most basic public services. The urgent need was for water, both for the textile industry – Bradford became the world’s leading manufacturer of worsted – and for the inhabitants and their animals. Various supply schemes proved inadequate until a provisional Water Company bought the land, seven miles from town, on which the copious Manywells Spring was situated. The promoters then applied for the private Act of Parliament needed both to secure legal identity as a company and to obtain compulsory powers to run their waterworks over other people’s land. Such an Act was finally obtained in 1842, and five years later Bradford itself was incorporated by statute. But the public powers conferred on the town by the latter Act were largely limited to keeping the peace and burying the dead, and so – as with many other newly incorporated towns – the powers to supply public services, above all when their provision involved interference with private property, had to be obtained by special private Acts: between 1854 and the Pickles litigation in the 1890s, Bradford needed more than a dozen such Acts just to enable it to provide enough water.
The 1842 Company consisted of private shareholders who naturally expected to make a profit from the business, but they failed to supply more than half the houses, and then only for a few hours a day, and never attempted to solve the problem of what the citizens were to do with the stuff after they had drunk it. So, in the aftermath of a bitter and expensive legal battle, the town bought out the Company for £200,000 and the result was enshrined in the Bradford Corporation Waterworks Act of 1854. One of the main assets acquired was the crucial Manywells Spring, from which gushed almost half a million gallons a day.
The spring was situated on a steep slope. A few yards uphill, as the book’s illustrations show, there still stands the wall marking the lower boundary of what was then the Pickles family farm. Beneath that farmland seeps the water, caught in the soil between coal and rock. Neither the 1842 Act (for all its 94 pages) nor the text of its many successors clearly identifies this underground supply. Unless some protection could be read into the general statutory verbiage, the spring could be seriously depleted if a shaft were sunk higher up the hill. This is what Pickles proposed to do, saying that it was a necessary part of his flagstone works project.
In a perfect world of rational economic actors a problem of this kind would be solved by agreement. Transaction costs are low, since there are only two players and they are neighbours. If the water rights are valued more by Bradford than they are by Pickles, the town will buy him out. If less, it will not. But in either case the normal process of bargaining should ensure that the resource ends up with the one who values it most. In this way litigation is avoided, but even if it takes place, the end of a lawsuit can restart negotiation. If the court forbids Pickles to cut off the water, he can still buy the right to do so if he values it at more than the town does. If, on the other hand, the town loses the lawsuit, it can always offer more money. And even if this fails, the town can apply for an Act authorising compulsory purchase at a price fixed, if necessary, by a jury. Thus the overall system provides for three possible stages of decentralised dispute settlement, all of which require the public utility to pay monetary compensation for its intrusion into others’ private property rights. Unless, of course, the others are so saintly as to cede them for nothing.
In all-too-human West Yorkshire nothing like this happened. In the 1860s, Edward Pickles’s father had been paid not to open coalmines which might have cut off the water, so the son offered to sell his land for £18,000 or the water rights for £11,000. Bradford refused to pay him a penny. Taggart shows from the archives that the councillors simply could not believe that the town had paid £200,000 for a source so vulnerable. As his portrait reproduced in the book suggests, the Bradford Town Clerk was a pillar of intransigence. So when Pickles, claiming to be mining for flagstone, began to dig a shaft on his land just six inches outside the zone of statutory protection, Bradford went to law, sued for an injunction to stop the excavation, and, at first instance, won the day. The trial judge held that the language of the waterworks’ statute was broad enough to reach the Pickles farm. And even if this were not the case, and even assuming that the farmer was entitled to dig on his own land, Pickles was not acting in good faith, as he was really sinking the shaft for other reasons than in order to work flagstone. On the legal issue as to whether motive alone can taint the otherwise lawful act of a landowner, there was then no clear common-law authority, so the judge turned to Roman law, where Ulpian cites Marcellus, a second-century jurist, who would permit an action against one who digs a well just to harm the neighbours. (Marcellus, by the way, seems to have been of austere temperament: while serving in Britain he had his bread sent from Rome, not because he preferred it but because it arrived so stale he was not tempted to overeat.)
After argument, but before judgment, the Court of Appeal hinted that the Town should buy out the water rights, if necessary by procuring another Act of Parliament. A special meeting of Bradford’s Waterworks Committee thought this suggestion quite preposterous, so, when Pickles won his appeal, the corporation trudged doggedly to the House of Lords. Their Lordships did not even need to hear the farmer’s side of the case in order to confirm the judgment in his favour. In defeat, the Town still declined to buy him out, so Pickles completed his excavations and cut off the supply. The Town then dug deeper in its own land and the restored waters supplied Bradford for the next half-century. Pickles and his family left Yorkshire for Canada, much the poorer for his legal victory.
But the reasoning behind that victory continues to resonate in several registers. First of all, English (unlike American) judges do not, off their own bat, attempt to weigh up the respective utilities, and to compare the benefit of a water supply to the people of Bradford with the cost to the farmer of being deprived of his flagstone. Yet for surface streams and rivers they had already worked out a balance: owners of land contiguous to flowing surface water could take it for use on that land. For ordinary uses (cattle, domestic consumption) they might lawfully even exhaust the supply; for other purposes, such as irrigation, the water could be taken only if this did not seriously impair the supply downstream. For underground waters, however, after some judicial hesitation, the House of Lords had in 1859 laid down the rule of first come first served. One reason for declining to impose standards of reasonable use was presumably that, faced with a subterranean flow, it would be much more difficult for landowners to know what they were not supposed to do. Anyway, the doctrine of precedent meant that the court in Pickles’s case was bound to hold that at common law he was at liberty to dig and thereby to take all the water. So the only questions left were whether this right was in some way curtailed by Bradford’s legislation, and, if not, whether Pickles’s bad faith impaired his freedom of action.
The first issue, that of statutory interpretation, is vital in a system with no constitutional protection for private property and with a Parliament that can do anything. In the US, for instance, the Fifth Amendment empowers the courts to strike down laws conferring objectionable compulsory purchase powers. But in England all that the judges could do was to interpret such legislation in as restricted – one might almost say as hostile – a way as possible. Either Bradford could point to a provision somewhere in its dozen or so statutes compelling Pickles to yield, or it could not. If it could not, then to forbid Pickles to sink a shaft on his own land because of his motive is to go beyond the edges of the statutory scheme and to sanction inroads into private property which are not permitted by Parliament and which almost amount to the notion that you can be deprived of your property right, without compensation, because you do not deserve it.
This traditional English approach to ‘abuse of rights’ is vividly expressed in Lord MacNaghten’s speech in the case:
They say that Mr Pickles’s action is malicious, and that because his motive is a bad one he is not at liberty to do a thing which every landowner in the country may do . . . And it may be taken that his real object was to show that he was master of the situation, and to force the corporation to buy him out at a price satisfactory to himself. Why should he, he may think, without fee or reward, keep his land as a store-room for a commodity which the corporation dispenses, probably not gratuitously, to the people of Bradford? . . . His conduct may seem shocking to a moral philosopher . . . But the real answer is that in such a case motives are immaterial. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element.
This is still, in principle, the approach of English judges, though it is more and more limited. For instance, where something, however intangible, impinges on the neighbours – noise, smells, dust – the motive of the defendant has long been relevant. And if an owner is also a monopolist, abuse of that position may be prohibited, so that ITV’s use of its copyright to prevent publication of competing weekly programme guides in Ireland was held to be a breach of the EU Treaty. Furthermore, Parliament can, of course, intervene and has done so, not regularly but quite often; with, for instance, its Water Resources Acts and with recent legislation against harassment.
But the British Parliament rarely aspires to the enactment of a general proposition. Other systems are not so pusillanimous, and Taggart’s book discusses the ‘abuse of rights’ doctrine developed by the courts in France and Scotland. There are, however, other more resounding proclamations of the principle. For instance, building on the frail Roman sources, the Germans announce in section 226 of their Civil Code: ‘The exercise of a right is unlawful if its only purpose can be to cause damage to another.’ Other sections require good faith (242) and make it tortious deliberately to injure another in a manner contrary to good morals (826). The special position of property-owners is also dealt with by the terse, if enigmatic, two-word sentence in Article 14 of the German Constitution: Eigentum verpflichtet – ownership imposes duties.
Even more impressive are those systems which put the principle at the very beginning of their Civil Codes, as for instance the Swiss and the Japanese do. And finally, the warmest reception to the notion was given by the socialist bloc in the days of Soviet dominance. The 1922 Russian code began with the warning that private rights are protected save when exercised in conflict with their social-economic purpose. Its successor in the days of the USSR forbade the exercise of rights in a way conflicting with ‘their purpose in a socialist society in the period of the construction of Communism’. Czechoslovakia began its 1950 Code by saying that no one must abuse their rights to the detriment of the collective, and Hungary did much the same in 1959. Their present laws are much more muted.