Interference with enjoyment of property
The medieval law had focused on preventing one person interfering with the rights of his neighbour, but greater attention was given to the enjoyment of land. In 1805, a Scottish judge, the Glasgow Dean of Guild, stated that “in a comparatively rude and uncultivated state of society, direct damage to persons or property appears to have been necessary to constitute a nuisance; but in the progress of society to a higher degree of civilisation, the general comfort of individuals has come to be considered of greater importance”
Rights to enjoyment might cover the right to light, to clean air, to clean water, to lack of loud noise and so on. .Private law gives the landowner certain typical rights (called ‘servitudes’ in civil law systems or ‘easements’ in England). These might cover the right to rainwater from a neighbour’s land, the right to locate windows, the right of way to access landlocked land over that of a neighbour, or the right to pasture your animals on another’s land. (All of these are to be found in the French Civil Code of 1804.)
Three issues arose in the modern period
- What were the rights of landowners building the new factories? Did neighbours have rights to enjoy their own land which could stop factories being built or operating?
- Would interference with enjoyment depend on proof that the factory owner was at fault?
- Was there a better way outside private law (e.g. through regulation) to decide where dangerous and noxious activities should be located?