Neighbours

Convenor: Jim Gordley, Berkeley
This study focuses on the duties of neighbouring landholders towards each other. This includes interference both by tangible (e.g. the escape of water) and intangible (noise) things. Natural rights in land (e.g. the right to support) fall within the study, but riparian rights (and more generally the right to a free flow of water) are outside it. Since situations falling within this field are frequently analysed in terms of rights as well as wrongs, the question of abuse of rights is included, but is not a primary component of the study. An important aspect of the context is the place of regulatory controls on the use of land. Their importance raises a fundamental question about the extent to which private law has anything more than a subsidiary or interstitial function.

Outcome

In most countries prior to industrialisation, there was a mix of (local) planning regulation and delictual liability. With changes in the economy, changes occurred in the social problems presenting themselves for legal resolution. The co-existence of residential and increasingly dangerous industries is perhaps the most prominent new problem for the law that had been developed for an essentially agrarian society, but the greater density of population in urban settlements also raised novel issues. For the most part, the problems were met by a growth in public law regulation, e.g. requirements for planning permission for dangerous and noxious industries in France from 1810 and rules on the location of certain activities.

The law on relations between neighbours was initially governed by property law (rights to various amenities such as light). While this might have been satisfactory when dealing with harm to person or property, this was less acceptable when it came to the increasing social expectations about the enjoyment of property (absence of noise or smell). In some early cases, e.g. in Germany, industry was seen as breaching such property rights of neighbours. But such a result was clearly unacceptable, so ideas of the ‘reasonableness’ of an activity in a particular location grew to govern what had to be tolerated by a neighbour. While not in itself a ‘fault’ standard, it did have certain similarities in determining unlawful conduct by reference to an objective social standard. A similar approach was taken to liability for omissions to prevent harm to a neighbour.

There were some situations of special risk which were taken out of the general regime of liability between neighbours and a special regime was created. This was not very successful in England (where it has gradually been narrowed in favour of fault), but was important in France, especially in public law. The rationale is that where a risk is created, it imposes an excessive burden on another and is a kind of expropriation which the person creating the risk must compensate for.

As a result of these developments, there were few tort cases (for example, in Scotland, there are no cases reported on damages between neighbours leading to personal injury from 1860 to 1950). Many of the problem areas identified before industrialisation recurred with different factual scenarios in the industrial era. Many of the values and tensions in traditional delict remained present, so that there was not a major change in the way fault was or was not a guiding element in legal development. If anything, fault-style liability replaced property-based reasoning as the basis for dealing with the majority of interferences arising between neighbours, except those where there was an appreciable risk. (Even here, often special regimes were created outside tort/delict to deal with them.)