Private Property and Abuse of Rights in

The leading case of The Mayor, Alderman and Burgesses of the Borough of Bradford v Pickles was the first to establish that it is not unlawful for a property owner to exercise his or her property rights maliciously and to the detriment of others or the public interest. Though controversial at the time, today it is often invisible and taken for granted. This book explores why the common law, in contrast to civil law systems, developed in this way.

Michael Taggart is Professor of Law at The University of Auckland. He studied law at the University of Auckland and Harvard University. He has taught law at the University of Auckland since 1982. Before that he taught at the University of Western Ontario and has visited Queen's University, Canada, the University of Saskatchewen, the University of Toronto and at the Centre for Public Law at the University of Cambridge, New Zealand.

Glossary

xv

Research Note

xvi

Notes to Illustrations

xvii

Table of Cases

xix

Table of Principal Legislation

xxiv

Prologue

1

(4)

Bradford and its Water Supply

5

(18)

Bradford and the Water Supply

5

(3)

Many Wells Spring

8

(4)

East Many Wells Farm

12

(2)

Bradford Waterworks Act 1842

14

(3)

The Incorporation of Bradford

17

(1)

The Municipalization of Water Supply

18

(2)

The Attitude of the Pickles Family

20

(1)

Many Wells Spring and the Bradford Water Supply

21

(2)

Coal, Stone, and Water at East Many Wells Farm

23

(26)

Coal and Stone

23

(1)

Like Father, Like Son

24

(3)

The Town Clerk

27

(5)

Edward Pickles

32

(1)

Pickles's Solicitors

32

(3)

`. . . the ordinary rights of a Landowner'

35

(8)

Blackmail?

43

(1)

Too Clever by Half?

44

(5)

To Court

49

(26)

The Litigation at First Instance

49

(6)

In the Court of Appeal

55

(4)

Head versus Heart?

59

(2)

The House of Lords

61

(2)

The Indigestible Morsel

63

(5)

Press Reaction

68

(1)

Swamped by Draining Water

69

(2)

Who was the Baddy in Pickles?

71

(2)

Was Edward Acting Maliciously?

73

(2)

Property and Statutory Interpretation

75

(32)

Bradford Waterworks Act 1842

75

(6)

The Acts of 1854

81

(1)

The Waterworks Clauses Act 1847

82

(2)

Statutory Interpretation in Pickles

84

(10)

Surreptitious Expropriation?

94

(2)

A Time-honoured Technique

96

(2)

Municipal Trading

98

(3)

`Benevolent Interpretation'

101

(1)

Property as Fundamental Right

102

(3)

The Common Lawyer and Statute

105

(2)

Property and Water

107

(38)

What was the Law in 1842?

108

(1)

Blackstone on Property and Water

109

(5)

Case Law and Literature between Blackstone and 1840

114

(5)

Developments post-1840

119

(8)

The Road to Chasemore v Richards

127

(4)

Chasemore v Richards

131

(3)

American Law in the Nineteenth Century

134

(4)

Subterranean Water in a Defined Stream

138

(3)

Pollution of Percolating Waters

141

(2)

Absolutism in Property

143

(2)

Abuse of Rights

145

(22)

The Doctrine of Abuse of Rights in French Law

145

(4)

Abuse of Rights in Scots Law

149

(3)

Equity and Abuse of Rights

152

(3)

Why an Abuse of Rights Doctrine Did Not Develop

155

(12)

Malice and the Law of Torts

167

(28)

Sir Frederick Pollock

167

(4)

Oliver Wendell Holmes

171

(6)

Later American Discussion

177

(2)

Economic Torts

179

(9)

Nuisance

188

(4)

Time for Reconsideration?

192

(3)

Epilogue: Pickles and the Public/Private Law Divide

195

(10)

Property Rights: Stick or Club?

196

(2)

The Private Law Paradigm

198

(3)

The Public Dimension of Private Property

201

(4)

Appendix: Further Notes

205

(8)

Select Bibliography

213

(20)

Index

233

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Private Property and Abuse of Rights in Victorian England The Story of Edward Pickles and the Bradford Water Supply

Summary

Author Biography

Table of Contents

Supplemental Materials