COMMENTS
COMMENTAIRES
An Expedition to the Frontiers of Nuisance
I. Introduction
There are two doctrines sufficiently indicated by the maxims “Cujus est
solum ejus est usque ad inferos,” and “ic utere tuo ut alienum non
laedes,” which have to be considered. These doctrines, driven to their
logical extreme, are irreconciliable. Some practical limitation of one by the
other has to be arrived at.’
The conflict between the concepts enshrined in these two maxims
has arisen most often in the context of a nuisance action. While
the cujus est doctrine suggests that one can do whatever one likes
with his property, the maxim sic utere tuo implies that this right is
circumscribed by a duty to respect the interests of others. In its most
basic terms, the conflict pits property law against tort law. The
absolutist view of property rights suggested by the cujus est maxim
has, of course, always been limited by the nuisance action. The
courts have long imposed liability on one who, in the exploitation
of his land, rendered life unhealthy or unpleasant for his neighbours.
However, it is often unclear on what basis such liability has been
founded. Are damages awarded because a proprietary right of the
plaintiff has been infringed, because a duty of care owed to the
plaintiff has been breached,2 or simply because the very fact of
(C.A.) per Rigby L.J.
‘Jordeson v. Sutton, Southcoates & Drypool Gas Co. [1899] 2 Ch. 217, 243
2 Historically, of course, one cannot speak in terms of “duty of care”. I
refer here to liability based on the regime which eventually emerged as tort
law as opposed to liability in a real action. In early times, nuisance was
considered a form of partial disseisin in that one deprived another of privileges
which were normally incident to his land. Thus the remedy was by way of
the assize of nuisance, which complemented the assize of novel disseisin.
Eventually the procedural advantages of the action on the case for nuisance
caused the assize of nuisance to fall into desuetude, and with the evolution
of the action on the case into generalized law of tort, the idea of nuisance
as a form of ouster was forgotten. See Fleming. The Law of Torts 5th ed.
(1977), 394. However, as this paper will endeavour to show, the roots of
nuisance in a real action have remained to prevent the flowering of nuisance
rather than the sui generis real-personal hybrid it
as a full-fledged tort,
now is.
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harm generates liability, irrespective of the degree of care exercised
by the defendant? Normally, the distinction would not matter, but
in one class of cases it is crucial: those in which the plaintiff has
incontestably suffered harm, but no right recognized by the law
of property has been infringed. Such is the whole range of rights
which can exist if acquired by negative easement (the right to light,
air, support) or restrictive covenant (the right to a view, to have
maintained an open space) but are not considered to form part of
the bundle of rights which attach to any interest in land existing
at common law or in equity. Also included in this category are
rights in waters percolating below the surface of one’s land in an
undefined channel. One has a right to use them a volontd once
they seep into one’s land, but no right to demand that an uphill
neighbour allow them to arrive there.3 If the law imposes liability
on the defendant because he has breached a duty of care owed to
his neighbour, or because the harm itself generates liability, then
it is irrelevant whether the plaintiff has a proprietary interest which
has been infringed by the defendant. If, however, the purpose of
the nuisance action is purely to protect known property rights,
then the absence of such a right will be fatal to the plaintiff’s claim.
The harm will be damnum absque injuria, and consequently neither
its gravity nor the negligence of the defendant will be relevant.4
Until quite recently, it was exactly this view which prevailed
in the English and Canadian jurisprudence. Within the last few
years, however, two Court of Appeal decisions, Penno v. Government
of Manitoba5 from Manitoba and Pugliese v. National Capital Com-
mission0 from Ontario, have refused to follow what will herein be
called “the property view” and have awarded damages based on
the other two tests of liability suggested above (“the tort view”).
In so doing they have, in the writer’s opinion, rationalized the
nuisance action by placing it on an entirely new footing. This
comment will attempt to explain this new view of nuisance and
to examine its ramifications in the areas of property law and tort
law. The approach taken by the civil law of Quebec to this problem
will also be discussed and will be followed by a conclusion in the
form of a comparative look at the law in the two systems.
3 See text, infra, Pt II for a full discussion of the law in this area. One
might also add to this list of “non-existent” property rights the interest
which is infringed when a plaintiff is a victim of a public nuisance. See
infra, note 89.
4 Infra, note 10.
6 (1975) 64 D.L.R. (3d) 256 (Man. CA.).
6 (1977) 79 D.L.R. (3d) 592 (Ont. C.A.); aff’d (on slightly different grounds)
[1979] 2 S.C.R. 104; see infra, note 48.
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COMMENTS – COMMENTAIRES
II. The common law position on percolating waters
As Penno7 and Puglieses deal with percolating waters, it will be
convenient to set out briefly the law on this subject as it existed
prior to the decisions rendered in these two cases.9
There are two problems which frequently arise as a result of
the abstraction of percolating waters: first, an adjoining owner
might no longer receive adequate water for personal or agricultural
uses; and second, an adjoining owner’s land, which had been sup-
ported by the underground waters, might subside. In the first case,
the old rule in Acton v. Blundel110 applied: as there was no pro-
prietary right to percolating waters,1 a landowner had no right of
action if a selfish neighbour extracted the lion’s share of the
waters before they reached the former’s lands. This principle was
also applied to the second type of case, albeit with one important
qualification: if the plaintiff could prove that his land was supported
not by water alone 2 but by a bed composed of water and some
other substance, he could assert his natural right to support against
7 Supra, note 5.
8 Supra, note 6.
9 See the judgment of Howland J. A. of the Ontario Court of Appeal in
Pugliese, supra, note 6, 598-615, wherein the English, American, and Austra-
lian rules which govern these situations are set out after which the position
in Ontario and the rest of common law Canada is discussed.
12 M. & W. 324, 152 E.R. 1223. In this case, a mine-owner who
sank pits on his land which drained away the subterranean waters formerly
used by the plaintiff in his cotton mill was held not liable as the damage was
damnum absque injuria.
10 (1843)
11 Presumably this is an exception to the usque ad inferos maxim. One can
only suppose that these waters are res nullius as the author has found no
claim that they are vested in the Crown at common law (although they may
be deemed to be so by statute: see, e.g., The Water Rights Act, R.S.M. 1970,
c. W80, ss. 2(g), 6 and 7(1)). Curiously enough, even though one has no
proprietary rights to these waters, one can maintain an action in nuisance
against a neighbour who pollutes them: see, e.g., Jackson v. Drury Construc-
tion Co. (1974) 4 O.R. (2d) 735 (C.A.), applying Ballard v. Tomlinson (1885)
29 Ch. 115 (C.A.).
‘2 Rigby L.J. opined obiter in Jordeson, supra, note 1, 244, that one could
acquire such a right of support by prescription, though the House of Lords
thought otherwise in Chasemore v. Richards (1859) 7 H.L.C. 349, 115 R.R.
187, where the plaintiff’s land had been supported by the waters for sixty
years. Rigby LJ. based his opinion on Popplewell v. Hodkinson (1869) L.R.
4 Ex. 248 where the Court of Exchequer Chamber held that such a right could
be conveyed by express or implied grant (see infra, text accompanying note
83).
McGILL LAW JOURNAL
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his neighbour and recover damages for nuisance. 18 This exception
to the rule in Acton v. Blundell was enshrined in the Jordeson case,14
where the withdrawal of a large quantity of running silt (sand
and water) from beneath the plaintiff’s lands causing subsidence
which resulted in structural damage to his cottages was held to be
“an actionable nuisance at common law”.15
III. Recent attenuations to the common law position
A. Penno v. Government of Manitoba
The plaintiff in Penno16 owned a farm upon which he grew hay
and alfalfa in his cattle raising operation. As part of a flood control
system, the defendant dug a drainage ditch through Penno’s property
to a depth lower than the existing water table. Consequently the
aquafir under Penno’s land sank considerably, and so did the
productivity of his farm. The water was undoubtedly of the ordinary
underground variety, and not in a defined channel. One would have
thought this to be a clear Acton v. Blundell situation, but the
Manitoba Court of Appeal affirmed the award of $30,000 in damages
to Penno. Monnin J.A., with whom Guy S.A. concurred, simply
said that proprietary rights to water were not in issue and observed
that there was “grave doubt” whether decisions such as Bradford
v. Pickles,’7 based on the common law, were of any use in Manitoba
after the passing of The Water Rights Act 8 which greatly restricts
a landowner’s right to abstract percolating waters from his proper-
ty.” Thus he felt the case should be decided on the grounds of either
negligence or nuisance.20
13 A fortiori, the principle applied where support was afforded by a sub-
stance containing no water at all, such as semi-fluid pitch: see Trinidad
Asphalt Co. v. Ambard [1899] A.C. 594 (P.C.).
14Supra, note 1.
25 1bid., 239 per Lindley M.R. For a recent application, see Lotus Ltd v.
British Soda Co. [1971) 1 All E.R. 265 (Ch. D.) where the abstraction of salt
and water solution causing subsidence was held actionable in nuisance.
‘0 Supra, note 5.
V1 [18953 A.C. 587 (H.L.). In
this case, it was held that if a landowner
diverted or appropriated percolating waters legally (i.e., within his own land),
he could not be held liable for resulting damage to the property of a neigh-
bouring landowner even if he were acting maliciously.
18 R.S.M. 1970, c. WS0, s. 6.
19 See infra, note 21.
2o Supra, note 5, 259. Consequently he felt he could distinguish Schneider
v. Town of Olds (1969) 8 D.L.R. (3d) 680 (Alta S.C.T.D.), where the digging
of the defendant’s well, which diminished the supply of water to the plaintiff’s
well, was not done negligently. In Schneider, the Court was clearly applying
19803
COMMENTS – COMMENTAIRES
Matas J.A. gave a more thorough, better-reasoned judgment in
which Freedman C.J.M. concurred. After dispensing with the de-
fendant’s argument based on The Water Rights Act,”1 and noting
the reservations regarding Acton v. Blundell voiced in Lotus Ltd v.
British Soda Co.2 12 and the Jordeson case,2 Matas J.A. concluded
that Acton v. Blundell and Bradford v. Pickles were no longer
applicable after the regime instituted by The Water Rights Act.2 4
the Acton v. Blundell rule; Monnin J.A.’s distinction is not valid because he
confuses negligence in the–construction of the well itself with negligence in
the whole plan of drilling a well to a depth which would foreseeably
diminish the plaintiff’s water supply in the first place. Matas S.A. makes the
same specious distinction of Schneider (at p. 271-72) even though he later
shows (at p. 274) that the two types of negligence are in fact different:
“It is not alleged by plaintiff [i.e., Penno] that -there was any negligence in
carrying out the work in accordance with plans and specifications …
. The
negligence is more fundamental than that. There was a lack of concern, in the
concept and design of the drainage scheme, for the overall effects of the new
system” [emphasis added]. Schneider may yet have been rightly decided
if the town’s action did not diminish unduly the plaintiff’s water supply, but
in the report as to the degree of harm suffered.
there is no evidence
Obviously if the town drills a well where none existed before, there is bound
to be less water available to surrounding proprietors, but that does not
as every proprietor has
mean that the town should not drill a well at all –
but merely that the town should be
the right to do that on his soil –
obliged to drill only to a depth which will cause the least degree of harm to
the landowners in the area. See intra, text between notes 58 and 61.
21Supra, note 5, 264-66. The defendant took the extreme position that, as
all proprietary rights to water were vested in the Crown by virtue of the
Act, “only the Government owns and has the right to use and control that
water”. Matas JA. pointed out that if this interpretation were correct, every
farmer would be required to obtain a licence before planting a crop which
drew upon water. In any case, he found that the plaintiff’s action was not
based on a proprietary right in the water at all, rendering the defendant’s
argument irrelevant, even if valid. It appears that Monnin and Matas JJA.
were of the opinion that The Water Rights Act made Bradford v. Pickles some-
how inapplicable or obsolete in Manitoba; however, in the author’s view,
Bradford was not followed for other reasons. In both cases the defendant is
saying that the plaintiff cannot succeed because he has no proprietary iight
in the water. The only difference is that no one owned the water in Bradford
while the Government of Manitoba claimed to own it in Penno. Hence, in
the author’s view, Bradford does not apply because it was based on “the
property view” which the Court rejects, and not because it is incompatible
with the Act.
22 Supra, note 15.
2 3 Supra, note 1.
24 See supra, note 21. He then considered the application of Acton v.
Blundell in Langbrook Properties, Ltd v. Surrey County Council [1969] 3
All E.R. 1424 (Ch. D.), and expressly disagreed with Plowman J.’s conclusion
in that case that there was no room for the operation of principles of
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The rout of “the property view” was complete; enter tort law.
Armed with numerous quotes from Nova Mink Ltd v. Trans-Canada
Airlines 15 about the circumstances generating a legal duty of care,
Matas J.A. had ino trouble impaling the defendant on the horns
of negligence, holding that the direct adverse effects of the drain
on the plaintiff’s land were foreseeable and constituted an action-
able breach of a legal duty of care.2 6 He then went on to look
at nuisance as an alternative basis of liability and decided that
the House of Lords had limited the applicability of Bradford v.
Pickles in its later decision in Sedleigh-Denfield v. O’Callaghan .2
Thus he felt justified in disregarding Bradford and following the
broad dicta of Lord Wright in Sedleigh-Denfield2s on the subject
of reasonable user.
In a dissenting judgment, Hall J.A. took the strict “property
view” and held that no action in nuisance was possible under
such circumstances. If the common law were to be departed from
in principle, “that [was] a matter for legislative intervention”.29
B. Pugliese v. National Capital Commission
In the Pugliese case20 the National Capital Commission (N.C.C.)
authorized the construction of the Lynwood Collector Sewer on
lands adjacent to properties owned by the one hundred seventy-one
plaintiffs in the action. In order to facilitate its tunnelling operations
forty feet below the surface, the defendant 3′ undertook a gargantuan
negligence or nuisance. Obviously frustrated by the problems encountered
in the application of technical English rules in a Canadian context, he verged
on saying that these rules were never received into Manitoba: “[T]he case
is to be decided on principles of negligence and should not be confined to
an examination of the common law decisions dealing with refinements and
distinctions of landowners’ rights over surface or percolating water, or
water in defined or undefined channels”: ibid., 273. In Pugliese, supra, note
6, 610, Howland J.A. specifically mentions that Acton v. Blundell was decided
in 1843, after the 1792 cutoff date for reception of English law into Ontario.
2- [1951] 2 D.L.R. 241 (N.S.S.C., App. Div.).
2 0 Supra, note 5, 271-74.
27 [1940] A.C. 880 (H.L.). Matas J.A. felt obliged to aim one more blow at
Bradford since counsel for the defendant had insisted that any action brought
specifically in nuisance was precluded by that case.
28 Ibid., 903. Quoted infra, text accompanying note 61.
29 Supra, note 5, 263. As for The Water Rights Act, Hall J.A. rightly said that
it did not put the plaintiff in any better position than that which he enjoyed
at common law.
3OSupra, note 6.
31 The term “defendant” includes the two construction companies which
carried out the work for the N.C.C. No distinction as to their respective
bases of liability is made in the judgment.
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COMMENTS – COMMENTAIRES
dewatering operation which drastically altered the soil stratigraphy
of the area. As layers of clay consolidated and strata of sand and
silt compressed, houses settled, laneways cracked, walls went askew
and faults snaked across basement floors. Again it was a question
of whether damages resulting from the abstraction of percolating
water were recoverable, and again the defence was Acton v. Blundell.
Galligan J..3 2 favouring Penno but uneasy about the conflicting
decision in Langbrook Properties, Ltd v. Survey County Council,33
referred the question of law to the Court of Appeal pursuant to
section 35 of The Judicature Act.34 After an exhaustive review of
the English, Australian, American, and Canadian jurisprudence,
Howland J.A. (as he then was) for the Court answered the question
as follows:
1. An owner of land does not have an absolute right to the support of
water beneath his land not flowing in a defined channel, but he does have a
right not to be subjected to interference with the support of such water,
amounting to negligence or nuisance.
2, Such an owner does have a right of action
(a) in negligence for damages resulting from the abstraction of such
water, or
(b) in nuisance for damages for unreasonable user of the lands in the
abstraction of such water.
3. Such an owner does not have a right of action under the Ontario
Water Resources Act for damages for subsidence arising from the
pumping of water in excess ot the amounts set out in permits issued
under that Act.35
32 Of the High Court, (1977) 15 O.R. (2d) 335.
.3Supra, note 24.
34 R.S.O. 1970, c. 228. S. 35(1) reads: “If a judge considers a decision pre-
viously given to be wrong and of sufficient importance to be considered in a
higher court, he may refer the case before him to the Court of Appeal”.
The Court of Appeal did not approve of Galligan J.’s reference as neither
decision was binding on him; thus he was free to choose between them on
the basis of principle and precedent. However, the Court of Appeal agreed
to determine the following question of law before resubmitting the matter
to the High Court for full trial as to the issue of damages:
Does an owner of land have a right to the support of water beneath his
land, not flowing in a defined channel, and does such an owner have a
right of action in negligence or nuisance or under The Ontario Water
Resources Act [R.S.O. 1970, c, 332 as am.] (from the pumping of water
in excess of the amounts as set out in permits granted under that Act),
for any damage resulting from the abstraction of such water?
See supra, note 6, 596. The Court held that no right arises from the breach
of a statutory duty: ibid., 619-21. This aspect of the case is not considered
herein. However, see infra, note 48 for a discussion of the Supreme Court
of Canada decision, supra, note 6, which centres on this point.
35 Supra, note 6, 621. As to the third point, see supra, note 34 and infra,
note 48.
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His reasons may be conveniently encapsulated in the following quote:
While recognizing the well-settled English rule as to the abstraction of
percolating water, I consider that recognition should be given at the same
time to the equally well-settled doctrines in the law of torts which impose
liability for property damage caused by negligence and nuisance. To con-
clude that those who abstract percolating water have an unbridled licence
to wreak havoc on their neighbours would be harsh and entirely out of
keeping with the law of torts as it exists today.36
I will now examine in detail the two major propositions set out
in Penno and Pugliese.
IV. The negligence argument
Not surprisingly, the nineteenth century courts tended to look
at the above problems as conflicts involving the balancing of two
sets of proprietary rightsY As the tort of negligence was only
in its infancy during that period, it simply was not considered by
the courts. Moreover, if recovery were denied in an action for
nuisance, 38 even in cases where the interference had been malicious,s
a fortiori a claim in negligence would fail.40
However, at least since Donoghue v. Stevenson,4′ the rationale
for denying liability in a Penno or Pugliese type case has been based
on an entirely false premise. Suppose that B, in exercising a property
right of his own, interferes with some amenity enjoyed by A on
his land. According to the old rule in Acton v. Blundell,42 if A’s
enjoyment of this amenity does not fall within a recognized right
of property, B is not liable for the interference. B owes A no duty
of care in tort because A lacks a property right which the law
will protect. This rule harks back to the pre-Donoghue days when B
could escape liability in tort because there was no contract between
himself and A.4 3 The contradiction in the pre-Donoghue position
if A had a property right or a contractual right he
is obvious:
36 Ibid., 615.
37 See, e.g., Acton v. Blundell, supra, note 10; Chasemore v. Richards, supra,
note 12; Popplewell v. Hodkinson, supra, note 12.
3 8 An exception, of course, is the Jordeson type situation, supra, note 15,
where the defendant was held liable for damages resulting from the with-
drawal of running silt.
39 See, e.g., Bradford v. Pickles, supra, note 17.
40It was this argument which appealed to Plowman J., in Langbrook
Properties, Ltd v. Surrey County Council, supra, note 24, the case which so
exercised Galligan J. in Pugliese, supra, note 32.
41 [19323 A.C. 562 (H.L.).
42 Supra, note 10.
43 This is the so-called Winterbottom v. Wright fallacy, (1842) 10 M. & W.
109, 152 E.R. 402 (Ex.).
1980]
COMMENTS – COMMENTAIRES
would base his action on it and tortious liability would be totally
superfluous.44 The whole function of tort law is to create a regime
of civil responsibility separate from that of contract and conceptually
distinct from the law of property. Once this tort-property dispute
is resolved (which for some reason has taken fifty years longer
than the settlement of the tort-contract imbroglio), it is obvious
that the plaintiff’s lack of property right is no longer a defence
to a tort action.”
In matters which may possibly involve two areas of substantive
law, much depends on how a judge characterizes the issue. If he
finds previous cases on the subject listed in Halsbury’s46 under
“Water and Watercourses” or “Easements” rather than “Torts” or
“Negligence”, he will instinctively look for a solution in property
law. Thus Plowman J. in Langbrook47 was content to ask himself
how the rule in Acton v. Blundell applied in a particular fact situa-
tion. 8 Howland J.A. went further and decided that there was a
tort aspect of the problem which demanded consideration.49 He
observed that “[i]n order for the plaintiffs to succeed in their
action they must, in my opinion, have a right which the law deems
worthy of protection”. 50 This replacement of the “protectable in-
terest” for the contract or the property right is the keystone of the
whole argument. In determining which interests should receive
such protection, Howland J.A. simply applied Lord Atkin’s good
neighbour test:
tion of a proprietary right via the tort action of nuisance.
44An exception, of course, is the historical accident which requires vindica-
45This does not mean that the lack of a property right is totally irrelevant.
Howland J.A. was careful to point out that both tort and property principles
has to be considered: supra, note 6, 615. Presumably he means that absence
of liability based on “the property view” can never be conclusive in se in a
tort action.
46 Halsbury’s Laws of England, 4th ed. (1973).
47 Supra, note 24.
4 sDonnelly J. was equally content to do so in Rade v. K. & E. Sand & Gravel
(Sarnia) Ltd [1970] 2 O.R. 188 (H.C.). This case is probably no longer good
law in Ontario after the Court of Appeal decision in Pugliese but its status
is more uncertain since the Supreme Court decision. Pigeon J., delivering the
judgment of a seven-man Court, decided that s. 37 of The Ontario Water
Resources Act, R.S.O. 1970, c. 332 could not serve as a defence in an action
for negligence or nuisance if the defendant had pumped water in quantities
exceeding that authorized by a permit issued under the Act: supra, note 6,
115. One wonders whether the statute could constitute a complete defence
if one pumped water within the requisite limits and damage still occurred.
This may well have been the situation in Rade (the facts are not clear from
the judgment) but the question remains unanswered by Pigeon J.’s judgment.
49 Supra, text accompanying note 36.
-5 Supra, note 6, 615.
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It would be difficult to conclude that the defendants should not reason-
ably have had the plaintiffs within their contemplation in the performance
of their pumping operations. The physical proximity of the plaintiffs’ land
to the defendants’ operations was such as to give rise to a foreseeable
risk of harm ….
In the absence of any statutory provision or other evidence to negative
or reduce the duty of care with respect to any of the defendants, there was
a duty to take reasonable care to avoid acts or omissions which one could
reasonably foresee would cause injury to those to whom the duty was
owed.
Howland S.A.’s well-reasoned judgment, following that of the
Manitoba Court of Appeal in Penno, represents a creative application
of principles of tortious liability to a problem traditionally seen
only in terms of real property law. Insofar as these two decisions
represent a change in an area of the law long recognized as ano-
malous, and constitute the logical culmination of a process begun
by Lord Atkin forty-five years earlier, they are to be welcomed.5 2
V. The nuisance argument
Authors and judges have long lamented the impossibility of
defining the term “nuisance”. 53 This is largely a result of the fact
that nuisance provides a remedy in such a wide variety of situations.
However, some basic principles emerge: nuisance protects a pro-
prietor’s beneficial user and enjoyment of his land as well as
the physical integrity of that land. If the plaintiff sues on the
basis of actual physical harm to his lands (“case I”), then once
he proves damage and causality he must recover from the defendant.”
Liability is, in this case, strict. We may call the defendant’s action
“unreasonable”, but this epithet does not advance us very far and
indeed may mislead us. Confusion arises because “unreasonable”
has a technical meaning when we consider case 2, in which the
plaintiff alleges interference with the enjoyment of his property
short of actual physical damage. Here it is not sufficient to prove
51 Ibid., 616.
52 The Manitoba Court of Appeal in Wilton v. Hansen (1969) 4 D.L.R. (3d)
167, 170-71, voiced the opinion that a duty of care existed between neighbours
such as to make B liable for excavations causing A’s well to collapse even
though A’s structures had acquired no easement of support. The remark was
obiter as A had in fact acquired an easement of support in the instant
case. See infra, text accompanying notes 110-111.
53 See, e.g., Fleming, supra, note 2, 393; Bamford v. Turnley (1862) 3 B.
& S. 62, 66, 122 E.R. 27 (Ex.).
54 St Helen’s Smelting Co. v. Tipping (1865)
11 H.L.C. 642, 11 E.R. 1483
trees caused by vapours from defendant’s copper
(damage to plaintiff’s
smelting plant).
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COMMENTS – COMMENTAIRES
damage and causality; the plaintiff must also prove that the de-
fendant’s user was “unreasonable” (in the technical sense) within
the context of that particular locality.55 If, for example, the defendant
operates a noisy asphalt plant overnight near a residential neigh-
bourhood, that is an unreasonable user. 6
In determining whether the user is unreasonable the court may
look at various factors, the most common of which are the gravity
of harm and the social utility of the defendant’s conduct. 7 The
concept of unreasonable user remains, however, a “property” con-
cept rather than a “tort” concept, in spite of the tort terminology.
It examines the activities of the defendant as he exploits his
property rather than any interest of the plaintiff which might be
infringed.”
Penno and Pugliese are examples of case 1. In the traditional
view, then, the reasonableness of the defendant’s conduct is irrele-
vant. However, both cases discuss “reasonableness” at some length
in another context: the accent shifts from the unreasonable user
of the defendant to the question of whether the impugned act was
unreasonable from the plaintiff’s point of view. In determining
whether a nuisance exists, it is not sufficient to ask whether an
occupier has made a reasonable use of his own property. One
must ask whether his conduct is reasonable considering the fact
55 Ibid. This distinction has been applied regularly in the Canadian cases:
see, e.g., Muirhead v. Timbers Bros. Sand & Gravel Ltd (1977) 3 C.C.L.T. 1
(Ont. H.C.); Walker v. Pioneer Construction Co. (1976) 8 O.R. (2d) 35 (H.C.).
56 Muirhead, supra, note 55, 6. Rutherford J. states that even if the user
were reasonable when seen in the context of the neighbourhood (and in the
instant case he found there was nothing inherently unreasonable in the
defendant operating a gravel quarry and asphalt plant in that part of the
Township of Uxbridge), the plaintiff could still recover in nuisance “to the
extent (if any) that the defendants’ activities resulted in material damage to
the plaintiffs’ property and, further, to the extent that such activities caused
discomfort and inconvenience that exceeded the requisite standard of comfort
given the mixed use nature of the locality”. This gloss, which well illustrates
the inherent conceptual difficulties in the unreasonable user test, is un-
necessary if one adopts the broad nuisance principle suggested infra, text
between notes 64 and 65. In fact, once Rutherford J. leaps from the sinking
ship of unreasonable user, his only tabula in naufragio is “inconvenience
that exceeded the requisite standard of comfort … of the locality”. This is
virtually a paraphrase of the words of Howland JA. in Pugliese, supra, note
6, 618.
5 Howland J.A. quotes Fleming to this effect in Pugliese, supra, note 6,
618.
58 An excellent example of this is the Australian case of Owen v. O’Connor
(1963) 63 S.R. (N.S.W.) 1051 (Eq.) discussed infra, note 116.
McGILL LAW JOURNAL
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that he has a neighbour.9 In this discussion the courts attribute
yet another meaning to the word “reasonable”. Howland S.A. puts
it best when he asks “Did it [the abstraction of the water] subject
the plaintiffs’ lands to damage beyond that which they could
reasonably be expected to tolerate?”‘0 Here he goes beyond the
limited, technical meaning of “unreasonable” used in the determina-
tion of liability in “case 2” actions to pose a wider test: in short
he progresses from “unreasonable” as understood by holders of
“the property view” to the meaning of the word as applied in tort
law.01
What, then, is actionable nuisance after Penno and Pugliese?
First, it must be noted that case 1 and case 2 seem to be merging 2
Had St Helen’s Smelting Co.63 been followed, the courts, after
rejecting the English rule regarding percolating waters, could have
said simply: “We find that the defendant’s actions caused physical
harm to the plaintiff’s land; consequently we find the former
liable in damages”. But they did not. They went on to examine
in some detail the rationale for imposing liability in tort. In so
doing, they opted for the broad test propounded by Lord Wright
without the limitations imposed upon it by the property view.04
59 Supra, note 6, 617.
,O Ibid., 619.
G1 It is significant that both Howland S.A. (supra, note 6, 617) and Matas
J.A. (supra, note 5, 276) quote from the same passage in Lord Wright’s judg-
ment in Sedleigh-Denfield v. O’Callaghan, supra, note 27, 903: “A balance
has to be maintained between the right of the occupier to do what he likes
with his own, and the right of his neighbour not to be interfered with. It is
impossible to give any precise or universal formula, but it may broadly be
said that a useful test is perhaps what is reasonable according to the ordinary
usages of mankind living in society, or more correctly in a particular so-
ciety”. While neither Penno nor Pugliese takes up the point, Lord Wright’s
statement was expressly limited to the case where the plaintiff could point
to a proprietary right which had been infringed; his reference to and tacit
approval of Bradford v. Pickles make this clear.
62 This implies that liability would not be strict in a case 1 situation. How-
ever, it would be difficult, once “the property view” was rejected, to imagine
a case where physical damage to A’s property would be within the reasonable
limits of neighbourhood.
6 Supra, note 54.
04 Lord Wright, in spite of his broad statements about the necessity of
reasonable behaviour, was at pains to point out the proprietary basis of the
nuisance action in the assize of nuisance. See supra, note 27, 903: “The
ground of responsibility is the possession and control of the land from which
the nuisance proceeds”. It is remarkable that the Sedleigh-Denfield case, or
at least a dictum from it, should have been so widely quoted in the nuisance
cases. The case itself turned on a rather narrow point, viz., whether the
defendant could be liable in nuisance when thi damage arose as a result
1980]
COMMENTS – COMMENTAIRES
The arguable result of this reasoning process is a new definition
of nuisance which runs as follows:
Any act by a landowner which subjects his neighbour’s lands to interfer-
ence beyond that which he could reasonably be expected to tolerate is an
actionable nuisance.
When put in this way, it is obvious that the basis of liability is not
solely interference with a proprietary right but also with Howland
J.A.’s “protectable interest”, expressed as it was in terms of the
reasonable expectations of neighbourhood.
This is an extremely broad principle, especially when one recalls
that liability in nuisance is strict. Thus, if the N.C.C. had conducted
extensive hydrological tests beforehand, the results of which would
have led a reasonable man to believe that the eventual damage
suffered was extremely unlikely, the N.C.C. could have been held
liable in nuisance, though not in negligence. The question which
arises now is whether this new concept of nuisance will be limited
to the seldom-explored realm of percolating waters. In the author’s
opinion, there is no reason, in principle, to restrict the potentially
vast realm of application of Penno and Pugliese, and the following
decision of the Ontario High Court supports this view.
of a pipe laid on his land by a trespasser without his knowledge. The pipe
had become blocked, flooding the plaintiff’s land. Lord Wright’s dictum was
purest obiter, as the defendant was not relying on his proprietary rights
at all, but merely pleading that he should not be held responsible for an act
of which he was totally unaware.
65 See Royal Anne Hotel Co. v. Village of Ashcroft (1979) 95 D.L.R. (3d) 756
(B.C.C.A.) where McIntyre J.A. (as he then was), delivering the judgment of
the Court, held a municipality liable in nuisance for damage resulting to
landowners from a random blockage in the sewer system maintained by it.
The trial judge, Macdonald J., had expressly absolved the municipality of
negligence with respect to the construction, maintenance and operation of
the sewer [see (1976) 1 C.C.L.T. 299, 307] and this finding was upheld on
appeal. McIntyre J.A. clearly outlined the difference between negligence and
nuisance in the area of strict liability: ibid., 759-60. Other important distinc-
tions beween negligence and nuisance exist. While recovery for pure economic
loss in a negligence action is a moot point, no action in nuisance has ever
disallowed economic loss as a head of damage: see Fleming, supra, note 2,
427; though cf. infra, note 89. See also Trappa Holdings Ltd v. District of
Surrey (1978) 95 D.L.R. (3d) 107 (B.C.S.C.), where Ruttan J. awarded $8,000.00,
representing lost sales, to the owner of a plant nursery where a municipality
had negligently restricted access to the business while reconstructing a
street in the area. The trial judge found both negligence and nuisance on the
part of the municipality and the contractor. The strict requirement of
physical injury in negligence is unknown in nuisance, and damages for inter-
ference with “sensibilities” are common: see Fleming, ibid. Thus one should
not take at face value statements in Penno and Pugliese to the effect that it is
immaterial whether the plaintiff bases his action in nuisance or negligence.
McGILL LAW JOURNAL
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VI. Application of the new principles: T. H. Critelli Ltd v. Lincoln
Trust & Savings Co.
Surprisingly enough, no case prior to Critelli”8 seems to have
considered the problem which arose in this eminently Canadian
fact situation: where B builds a nine-storey building immediately
adjacent to A’s two-storey building, creating a lee in which an
inordinate amount of snow accumulates and seriously damages
A’s roof, does A have a cause of action?”r The construction was
effected without negligence; the damage was inevitable once a neigh-
bouring structure rose more than eight feet above A’s roof.08 B,
naturally enough, denied liability on the grounds that he had made
a lawful and non-negligent user of his property. Nevertheless, said
Grange I., “the question falls to be decided on general principles
of negligence and nuisance and the user of land”0 9 Thus he had
no difficulty in awarding A $14,000 damages (the cost of strength-
ening the roof to bear the increased load of snow). Although Grange
J. appears to have based his award on the claim in nuisance, he
clearly thought that the defendant had been negligent in the Penno
sense (that is, with regard to the overall design of the building),
rather than in the physical erection thereof 70 His use of the language
of foreseeability makes this clear:
The defendant Lincoln Trust … knew before construction of the existence
of the plaintiffs’ building and that the planned construction would
inevitably cause damage. Surely it was incumbent upon Lincoln Trust to
take steps to prevent that damage.”7
66 (1978) 2 R.P.R. 290 (Ont. H.C.).
07The City Building Code required that the roof be able to withstand
30.4 lbs./sq. ft. of snow; the plaintiffs’ roof was built to withstand 50 lbs./sq.
ft. pressure, but the snow load after the defendants’ construction increased
to 114 lbs./sq. ft.
6 8 Quaere whether the finding of liability in this case creates a chink in
the armour of the “abnormal sensitivity” rule. It is usually said that one
cannot, by adapting one’s land to a special use, require one’s neighbour to
stop an activity which would otherwise be unobjectionable. The plaintiffs’
user in Critelli was not “special” in the sense that it was not unusual for a
two-storey building to exist in downtown St Catharines (pop. 125,000). But
was the use not “special” in that it could have rendered liable in damages
neighbours on three sides who erected buildings surpassing the plaintiffs’
by more than eight feet in height?
6 9 Supra, note 66, 293. In support of this view he cited the passage from
Pugliese in which Lord Wright’s ubiquitous obiter was quoted (see supra,
note 61) and the passage where Howland J.A. affirmed the strict liability
principle in nuisance: ibid., 293-94.
70 See supra, note 20.
U1 Supra, note 66, 294.
19801
COMMENTS – COMMENTAIRES
An unpretentious little decision, one might say. It is very unlikely,
however, that it would have been decided in the same way before
Penno and Pugliese, given that the defendant was exercising a valid
proprietary right and that the right to be protected from the weather
cannot exist as an easement. 2 Grange J. does not even mention
“the property view”, but wholeheartedly applies the new principle
of nuisance suggested above. Thus, there is already clear judicial
support for the Pugliese view.
VII. The import of the nuisance principle
Given the breadth of the nuisance principle in Penno and Pugliese
and its application in Critelli, what further developments can we
expect? There are many occasions when A might wish compensation
for the injury caused to him by the activities of his neighbour B
on B’s own land, such as erecting a billboard which would spoil A’s
magnificent view, or constructing a wall which will block all the light
penetrating A’s windows. If A has no right to these amenities ex
jure naturae,73 he has the choice of acquiring the right to them
by easement or contract, or of bringing an action in nuisance against
B to prevent unreasonable interference with his enjoyment of such
amenities. However, some of these rights cannot exist as easements
as they are not capable of forming the subject-matter of a grantJ 4
Those based on contract are necessarily tenuous as B may sell his
land- Finally, a nuisance action in this area has traditionally been
met with the Acton v. Blundell defence.7 6 Thus A’s only recourse
often has been a slow boil; if the Critelli approach is any indication,
however, A may soon take heart.
It will be convenient to divide the types of rights which A wants
protected into two categories: those which can exist as easements
72Phipps v. Pears [1965] 1 Q.B. 76 (C.A.).
73 The rights ex jure naturae comprise the right to lateral support of one’s
soil (but not one’s buildings), the right to subjacent support by minerals
(but not by water), and the right to the accustomed flow of water running
in a defined channel through one’s land. See HaIsbury’s Laws of England,
supra, note 46, vol. 14, 168, 170, 190. There is no natural right to light
passing over a neighbour’s property. Only the light which falls perpendicu-
larly on one’s land is an incident of property: see ibid., 210; Maurice, Gale
on Easements 14th ed. (1972), 238. There is no natural right to the passage
of air: Halsbury’s Laws of England, ibid., 237. As to support, see infra,
notes 101-103. As to water, see Re Snow & City of Toronto (1924) 56 O.L.R.
100
74 See Gale on Easements, supra, note 73, 22-34.
5 Unless, of course, the contract takes the form of a restrictive covenant
(C.A.).
which binds the land: see infra, note 117.
TOSee supra, text accompanying note 10.
McGILL LAW JOURNAL
[Vol. 25
and those which cannot. Effectively, the acquisition of either type
of right produces the desired result: the imposition of obligations
of a negative nature on B, which prevent him from doing what he
would normally be able to do as a property owner.
A. Easements
1. Easements of light and air
As just noted, A has no natural right to light or air,77 and can no
longer acquire an easement therein by prescription in Ontario. 8
Presumably he could obtain these rights by express or implied grant
from B,7 9 but this course of action might be costly, and in any case
B could refuse. Could A take an action in nuisance against B and
obtain an injunction prohibiting B from building a wall blocking
all of A’s light?80 Or could A recover damages if B proceeded regard-
less of A’s protests? Based on the broad scope of nuisance as set
out in Pugliese and as applied in Critelli, it is difficult to see why not.
The fact that A has no right at common law to the light passing
over B’s land is no longer a complete defence by B. Assessment
of damages would not be easy, but this has never stopped the courts.8 ‘
A special problem arises with regard to air. While A can no
longer acquire a right to air by prescription, B can acquire a right
7 7 Supra, note 73.
78The Limitations Act, R.S.O. 1970, c. 246, s. 33. See also R.S.A. 1970, c.
209, s. 50; R.S.N.B. 1973, c. E-1, s. 8; R.S.N.S. 1967, c. 168, ss. 31-32; R.S.S. 1978,
c. L-5, s. 72. As to the Territories, see R.S.C. 1970, c. L-4, ss. 73, 80.
79There is some doubt in the English jurisprudence whether a right to
light or air can be the subject of an express grant (though undoubtedly, but
illogically, these rights can be obtained via presumed grant (prescription)
in England: see Gale on Easements, supra, note 73, 23-24).
8 Grange J. considered this possibility in Critelli, supra, note 66, 295 and
concluded that “relief [might] have been refused upon the ground of the
adequacy of the damage remedy”. Obviously, A would have to present a
very strong case before an injunction would be granted. The courts are
unlikely to call a halt to construction simply because A’s kitchen will receive
37% less light than previously; however, if A owns a greenhouse which re-
presents his livelihood, they may be more sympathetic to such an aotion. In
Walker v. McKinnon Industries Ltd [1949] O.R. 549, [1949] 4 D.L.R. 739 (H.C.),
aft’d [1950]. 3 D.L.R. 159 (Ont. C.A.), a!f’d (sub nom. McKinnon Industries
Ltd v. Walker)[1951] 3 D.L.R. 577 (P.C.), an injunction issued to prevent the
defendant steel manufacturer from spewing forth “smoke, noxious fumes,
vapours and gases” which had damaged orchids in the plaintiff’s greenhouse.
If one can classify nuisance actions generally into those which actually
damage A’s premises and those which merely interfere with his enjoyment of
those premises, as stated supra, text accompanying notes 54 and 55, it is
cvident that an injunction is more likely to issue in the former situation.
81 See, e.g., Chaplin v. Hicks [1911] 2 K.B. 786 (C.A.).
1980]
COMMENTS – COMMENTAIRES
to pollute A’s air by twenty years’ user.8 Could A push the Pugliese
principle to its logical extreme and argue that B’s user is unreason-
able when looked at from A’s point of view and that therefore a
defence involving a proprietary claim (the prescriptive easement)
is of no avail to B because the matter is to be decided according
to principles of tort law? Courts would no doubt be hesitant to
accept this reasoning, as such a decision would involve giving priority
to a judge-made rule (Pugliese) over a statutory rule (The Limita-
tions Act), yet the above result is arguably a natural consequence
of the broad nuisance principle set out in Pugliese.83
82 See, e.g., Radenhurst v. Coate (1857) 6 Grant 139, 143 (C.A.); Russell
Transport Ltd v. Ontario Malleable Iron Co. [1952] O.R. 621, [1952] 4 D.L.R.
719 (H.C.). It should be noted that A is not totally without recourse once the
prescription period has run: for a discussion of arguments which might be
used to defeat B’s claim, see McLaren, “The Law of Torts and Pollution”,
in Special Lectures of the Law Society of Upper Canada (1973) 309, 328-29.
83The whole concept of gaining the right to commit a nuisance via
prescriptive easement seems hard to justify at the present time. Presumably,
lie in grant: express, implied or pre-
the hallowed formula, “Easements
sumed” led Rigby L.J. to reason in Jordeson that if A can grant to B,
expressly or impliedly, the right to pollute A’s air (i.e., if the right satisfies
the four requisites of an easement: see Gale on Easements, supra, note
73, 7 et seq.), B must be able to acquire that right by prescription: supra,
note 1, 244. While the maxim has symmetry and history on its side, it
does not distinguish among the wide range of rights which the law recog-
nizes as easements. Other than the fact that the law calls them both ease-
ments, there is no inherent reason why an ordinary right of way and a right
to sully the air with noxious fumes should be subject to the same rules.
Indeed, the legislature of Ontario saw fit to abolish prescription as a means
of obtaining easements to light and air as early as 1880, no doubt as a
those
result of the arcane technicalities which had come to characterize
areas of the. law: see An Act to amend certain particulars in the law of
Real Property, S.O. 1880, c. 14, s. 1. A majority of the English Law Reform
Committee advocated the total abolition of prescription: Law Reform Com-
mittee, Fourteenth Report, Cmnd 1100 (1966). Certainly there is an even
stronger policy justification for abolishing the prescriptive acquisition of
rights to commit a nuisance. Undoubtedly the principle of prescription is
useful and necessary in many areas (e.g., personal injuries actions, validation
of small encroachments by adjacent owners). It appears, however, to have
been extended by analogy to nuisances without any clear idea of the con-
sequences. Prescription is supposedly based on consent. If A does not object
to B’s pouring sulphur into his air, A is thought to acquiesce in this activity
and, given a long enough period of indifference, will lose his right to com-
plain. This is said to create certainty in the law, in that B will know (after
waiting twenty years) that A can no longer take an action against him.
One might ask what happened to this concern for certainty during the
twenty-year period, when B knew A could sue him at any time. The twenty-
year rule seems totally arbitrary in this context and its abolition would be
preferable to a reduction or extension. Then the law would be certain. The
McGiLL LAW JOURNAL
[Vol. 25
2. Easements in or over water
As an owner of land adjacent to water running in a defined
natural channel, A has a right ex jure naturae to the customary
flow of water, as regards both quality and quantity.’ This riparian
right is an incident of the land itself and is not dependent on any
easement. B, located on the same stream, may nevertheless acquire
by way of easement a right to use the water in a manner exceeding
his normal rights as a riparian owner: for instance, a right to
pollute the water, 5 or to pen back a stream and flood neighbouring
lands. 8 There was always, however, a curious lacuna in the law
regarding pollution owing to the fact that a riparian owner has no
proprietary rights in water flowing by his property. If B’s pollution
constituted an unreasonable interference with A’s use and enjoyment
of his property, A could take an action in nuisance against B, or
an action for infringement of riparian rightsYT However, should B’s
pollution cause the death of fish which A had been accustomed
to take from the stream, A could not protest because he had no
proprietary right in the fish, a right which only accompanies owner-
ship of the solum.88 Thus he was relegated to the position of a
victim of a public nuisance, and could only recover upon showing
peculiar damage. 9 If one is entitled to set aside the question of
right to commit a nuisance would be obtained only through a truly con-
sensual contract rather than the fictional consent of prescription.
Ironically enough, by recognizing as nuisances activities which pre-
viously had not been considered so, Pugliese and Critelli have widened the
range of interferences in another’s land which may subsequently be legitimat-
ed by prescription. We may have jumped out of the frying pan into the fire,
but this merely illustrates the futility of not following Pugliese to its logical
extreme, as suggested supra, text preceding note 81.
84 See supra, note 73.
85 Hunter v. Richards (1912) 26 O.L.R. 458 (Div. Ct); affd (1913) 28 O.L.R.
267 (C.A.).
86 Cardwell v. Breckenbridge (1913) 24 O.W.R. 569, 4 O.W.N. 1295, 11 D.L,R.
461 (H.C.).
8TMcKie v. K.V.P. Co. [1948] O.R. 398 (H.C.).
88 Ownership of the bed of a river is vested in the Crown in right of the
province, barring an express grant: The Beds of Navigable Waters Act,
R.S.O. 1970, c. 41, s. 1.
8 9McKie v. K.V.P., supra, note 87. This case brings out the distinction
between riparian and proprietary rights very well, as one plaintiff owned a
water lot (and thus the solum) while the others were mere riparian owners.
All plaintiffs were entitled to an injunction on the basis of nuisance; however
only the owner of the solum was awarded damages for the loss of fishing
rights. Because a riparian owner will generally be able to get an injunction
solely on the basis of his right to receive the flow of water unaltered in
quality, he has a remedy, albeit indirect, for the loss of fishing rights in a
1980]
COMMENTS – COMMENTAIRES
property rights, as Howland S.A. does in Pugliese, one is certainly
faced with an unreasonable user of land by B which causes harm
to A, and, in the absence of a defence of prescriptionPO or statutory
authority, it is difficult to see why B would not be liable in damagesY’
It is important to remember that, in determining what constitutes
an “unreasonable” user of land, courts generally balance several
competing factors – most notably, the social utility of the de-
fendant’s conduct and the gravity of harm to others resulting
from such conduct. However, in McKie v. The K.V.P. Co.2 McRuer
C.J.H.C. said:
Some evidence was given on behalf of the defendant to show the im-
portance of its business in the community, and that it carried it on in a
proper manner. Neither of these elements is to be taken into considera-
tion in a case of this character, nor are the economic necessities of the
-defendant relevant to be considered …
. In my view, if I were to consider
and give effect to an argument based on the defendant’s economic position
in the community, or its financial interest, I would in effect be giving
to it a veritable power of expropriation of the common law rights of the
riparian owners, without compensationP9
If, by this pronouncement, the Chief Justice meant that a judge
could never examine the social utility of the defendant’s conduct,
he was overstating the case. In Pugliese, Howland J.A. quoted
Fleming as stating that the utility of the defendant’s conduct and
river. However, if we are dealing with fishing rights in the ocean, the problem
arises in a more acute form, because there is no right to unpolluted sea
water. In Hickey v. Electric Reduction Co. (1970) 21 D.L.R. (3d) 368 (Nfld
S.C.), several fisherman sued the owners of a phosphorous plant which was
dumping poisonous waste into the ocean and ruining their fishing business.
Furlong CJ. held that this amounted to a public nuisance; thus, the Attorney-
General’s consent had to be obtained. In addition, even if this hurdle had
been overcome, he thought damages for economic loss would not be recover-
able, quoting Lord Denning M.R. in SCM (UK) Ltd v. W. J. Whittal & Son
Ltd [1970] 3 All E.R. 245 (C.A.). Cf. supra, note 65.
90For the arguments against the existence of pollution sanctioned by
prescription, see supra, note 83.
91See, e.g., supra, note 6, 617-18; see also Fleming, supra, note 2, 402;
McLaren, supra, note 82, 317-18. One argument against this approach is that
it assimilates public and private nuisance. As public nuisance is beyond the
scope of this paper, the argument will not be explored any further.
92 Supra, note 87, 410-11.
93 Ibid. The Chief Justice’s compunctions evidently did not trouble the
Ontario Legislature, as it soon passed The KVP Company Limited Act, 1950,
S.O. 1950, c. 33, dissolving the injunction granted. The Lakes and Rivers Im-
provement Act, now R.S.O. 1970, c. 233 was subsequently amended to direct
judges to balance the “importance … benefit and advantage …
[to] that
locality” of such mills against the private injury: see s. 37(l)(a). No cases
have since been reported under this section.
McGILL LAW JOURNAL
[Vol. 25
gravity of harm were factors in the evaluation process.04 Matas S.A.
referred to the “desirable objective” of the Government of Manitoba
in Penno.95 And of course the ubiquitous Sedleigh-Denfield formula 0
would hardly permit a plaintiff to insist on his strict rights even
though it led to the economic ruin of a community. Nuisance is
always a two-edged sword, a balancing act. As one discards the
old defences to nuisance based on property law and as nuisance
moves more and more into the realm of tort, extending the rights
of our mythical plaintiff A, one runs the risk of allowing A to
sterilize B’s land.9 7 A, whom we are trying so hard to protect, could
turn into another Mr Pickles precisely because we are protecting
him. Thus the need for the courts to examine all the factors, in-
cluding social utility, gravity of harm, sensitivity of the plaintiff,
character of the locale, duration of the interference, even the
malice of the parties,98
is greater than ever.99 However, having
looked at them, in the final analysis it must be said that Chiet
Justice McRuer’s statement remains hard to controvert. If we
accept that the court’s function is basically adjudicative, it is difficult
to see why A’s remedy should be sacrificed to the deus ex machina
of public interest. If the result is unsatisfactory from a global
point of view, recourse should be sought in other arenas.1
94 Supra, note 6, 617-18.
95 Supra, note 5, 269.
93 Supra, note 27.
97 It was exactly this consideration which motivated the court in Popple-
well v. Hodkinson, supra, note 12, a decision which is open to criticism in
that it followed the old Acton v. Blundell school of thought. However,
Popplewell was arguably a good decision on the facts. The defendant wanted
to drain his land in order to develop it, as it was too soggy to support
buildings. In draining it, he inevitably drained some of his neighbour’s land
as well, causing the subsidence damage which led to the action. Had the
court permitted the action, it would have in effect obliged the defendant to
keep his land -as a swamp forever. “Once a morass, always a morass”, as
Rigby L.. observed in Jordeson (supra, note 1, 243), would have been the
rule. But even though an injunction would not be granted, it would not
seem altogether unjust to allow damages.
98See the famous case of Hollywood Silver Fox Farm v. Emmett [1936]
1 All E.R. 825 (K.B.).
19 The list is not exhaustive. These are simply the factors most commonly
mentioned in the texts and the cases: see Fleming, supra, note 2, 401-8;
Armitage & Dias (eds.), Clerk & Lindsell on Torts 14th ed. (1975), 1395;
Halsbury’s Laws of England 3d ed. (1959), vol. 28, 161-163.
10 0 For a thought-provoking look at this conflict, see Hawkins, “In and of
Itself”: Some Thoughts on the Assignment of Property Rights in Nuisance
Cases (1978) 36 U.T. Fac. L. Rev. 209.
19801
COMMENTS – COMMENTAIRES
3. Easements of support
A has a right to lateral support for his soil from the soil of his
neighbour B,101 a right to subjacent support by minerals or soil
should the surface belong to A and the substratum to B’0 2 and,
after Penno and Pugliese, a qualified right to the support of per-
colating waters. 10 3 The first two are natural rights which are
incident to the land.104 The third is not a right of property stricto
sensu but a hybrid of real and personal rights defined in terms
of nuisance, which is itself a hybrid action.
Until Penno and Pugliese, it was clear that A had no natural
right to support for his buildings from adjacent soil or structures.’05
Such a right could only exist as an easement based on an express,
implied or presumed grant. 0 6 This would appear still to be the
I’D Cleland v. Berberick (1915) 34 O.L.R. 636, 25 D.L.R. 583 (H.C.) (applying
the classic authority Dalton v. Angus & Co. (1881) 6 App. Cas. 740 (H.L.));
aff’d (1916) 36 O.L.R. 357, 29 D.L.R. 72 (C.A.).
102 Davies v. James Bay [1914] A.C. 1043 (P.C.), varying (1913) 28 O.L.R.
544 (C.A.). One also has an absolute right to the support of any substance
flowing, oozing, or stagnant beneath one’s soil provided it is not wholly
water: supra, note 1.
103 Supra, text accompanying note 35.
lo4 Supra, note 73.
105 As Lord Penzance said in Dalton v. Angus & Co., supra, note 101, 804:
“[I]t is the law … that at any time within twenty years after the house is
built the owner of the adjacent soil may with perfect legality dig that soil
away, and allow his neighbour’s house, if supported by it, to fall in ruins
to the ground”. See also Gale on Easements, supra, note 73, 290.
100 See Gale on Easemnents, supra, note 73, 292-300. In fact, cases where
the grim scenario painted by Lord Penzance, supra, note 105, has actually
arisen appear to be extremely rare, as the courts are very willing to find a
prescriptive easement of support or an implied agreement between the
neighbours that the excavating party will not do anything to prejudice an
adjacent house. See Canada Trust Co. v. Town of Strathroy [1955] O.W.N.
840 (H.C.); aff’d [1956] O.W.N. 474 (C.A.) and Metropolitan Life Insurance
Co. v. McQueen [1924] 2 W.W.R. 981, [1924] 2 D.L.R. 942 (Alta S.C.). In general,
judicial common sense appears to have prevented the intolerable results of
the Penzance principle. One decision of the Supreme Court of Canada, how-
ever, came very close to adopting it. The facts of Iredale v. Loudon (1908)
40 S.C.R. 313, rev’g (1907) 15 O.L.R. 286 (C.A.) and restoring with a variation
(1906) 14 O.L.R. 17 (Ch. D.) could have been taken from a law student’s
pre-exam nightmare. In brief, the plaintiff had acquired a possessory title to
the upper storey of the defendants’ two-storey building by twelve years’ user
and had used an entrance and staircase during the whole of his seventeen
years’ occupation. Thus he fell just short of acquiring a prescriptive easement
over the stairway. At this point the defendants decided to demolish the
building. A nice question arose: did the plaintiff’s title include a natural right
to support which oozed through the lower storey and into the ground? Or
was his support to be determined solely on the principles applicable to two
McGILL LAW JOURNAL
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law in England, 07 but there has been marked resistance to the
rule in Canada and New Zealand” 8 when it leads to a manifestly
unjust result. In Wilton v. Hansen,0 9 where D’s excavations caused
P’s wall to collapse, the Manitoba Court of Appeal allowed an
action for damages in tort based on P’s acquisition of a prescriptive
easement.”” However, Freedman J.A.
(as he then was) clearly
stated”‘ that, irrespective of the existence of the easement, the
plaintiff could have recovered in negligence. Dalton v. Angus,”‘
the classic authority denying liability in such circumstances, was
not even mentioned, but Donoghue v. Stevenson was.”8 The Court
buildings leaning one against the other? In a sibylline pronouncement, Duff
J., with whom Sir Charles Fitzpatrick CJ. concurred, opined: “The plaintiff
is therefore not entitled to the injunction in the broad terms of the order
granted by Mabee J. [see (1906) 14 O.L.R. 17], but he is I think entitled to an
order restraining the defendants from interfering with so much of the
structure as rests upon that part of the soil itself to which he had acquired
a possessory title” (ibid., 337-38). Davies J. thought that the possessory
title to the upper storey carried with it what was absolutely necessary to
its existence, viz., a right to support from the lower storey and the right to
use the staircase. Thus he would have restored in full the judgment of
Mabee J. Idington and Maclennan JJ. dissented. It would be interesting to
know how and if Duff J.’s order was ever executed.
10 Ray v. Fairway Motors (Barnstaple) Ltd (1968) 112 Sol. So. 925 (C.A.).
P was able to recover for damages caused to his well by D’s excavations
because an easement in P’s favour was admitted to exist, but Willmer and
Russell L.J. expressed the view obiter that if no easement had existed,
Dalton v. Angus would have applied and that the reconciliation of Dalton with
Donoghue v. Stevenson, supra, note 41, should be left to the House of Lords.
108 See Bognuda v. Upton & Shearer Ltd [1972] N.Z.L.R. 741, where the
Court of Appeal refused to follow Dalton v. Angus and applied Donoghue v.
Stevenson instead. The prescription argument which is so intimately bound
up with the Dalton view was held inapplicable in New Zealand where pres-
criptive easements of all kinds have been abolished: Land Transfer Act
1952, S.N.Z. 1952, No. 52, s. 64. There exists land titles legislation in some
Canadian provinces to the same effect: The Land Registry Act, R.S.B.C.
1960, c. 208, s. 38 as am. by S.B.C. 1971, c. 30, s. 8; The Land Titles Act, R.S.O.
1970, c. 234, s. 58; Land Titles Act, R.S.S. 1978, c. L-5, s. 72. The Land Titles
Act, R.S.C. 1970, c. LA contains no express disposition but quaere whether
s. 72(1) effectively negatives the possibility of prescriptive easements in the
Territories. As to Manitoba, see infra, note 110.
‘0 9 Supra, note 52.
“101n agreeing that prescriptive easements were possible in Manitoba, the
Court followed Stall v. Yarosz (1964) 43 D.L.R. (2d) 255, 47 W.W.R. 113
(Man. C.A.) which said the prohibition of adverse possession did not apply
to easements, which are acquired by user. See The Real Property Act, R.S.M.
1970, c. R30, ss. 57(1)(c) and 61(2).
1′ Supra, note 52, 169-70.
112 Supra, note 101.
11 Supra, note 41.
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COMMENTS – COMMENTAIRES
of Appeal made no reference to Wilton in its later decision in Penno,
but both cases clearly involve exactly the same issue in admitting
the possibility of a claim in tort by a plaintiff who would have no
locus standi from the point of view of property law.114 Thus the
decisions in Penno and Pugliese confirm Freedman J.A.’s obiter
in Wilton. To paraphrase Howland J.A.,1″5 the law would now seem
to be that an owner of land does not have an absolute right of
support for his buildings from neighbouring soil, but he does
have a right not to be subjected to interference with the support
of such soil, amounting to negligence or nuisance.
B. Rights less than easements
The extent to which the Pugliese decision will apply to cases
not dealing with percolating waters becomes even more important
when one considers the rights not presently capable of existing as
easements which A may want over B’s land: A may have a magnifi-
cent view which will be totally obliterated if B erects a billboard ad-
vertising his new fast-food restaurant. B may buy the lot next door
to A and construct his house in such a way that B’s living room
window looks directly into A’s secluded patio. Since the law does
not recognize easements of prospect or privacy,116 A can only protect
114Although Freedman J.A. spoke only of negligence, it is clear that he
would have been receptive to a claim in nuisance had the defendant not
been negligent.
115 Supra, note 6, 621.
116 As to prospect, the law was stated in Bland v. Moseley, a case dating
from 1587 cited by the Court in Alfred’s Case (1610) 9 Co. Rep. 57b, 77 E.R.
816. In the former case, the plaintiff possessed a fine house with seven
windows in one wall overlooking “land containing half a rood”. His neighbour
built a structure which barred the light from these windows and obstructed
the view as well as the flow of air. Recovery was allowed as the rights to
light and air were “ancient” (i.e., enjoyed since prior to 1189) but Wray CJ.
said: “[F]or prospect, which is a matter only of delight and not of necessity,
no action lies for stopping thereof”. Bland v. Moseley was cited with approval
in Phipps v. Pears, supra, note 72, 83. In McBean v. Wyllie (1902) 14 Man.
L.R. 135 (K.B.), the erection of a building which cut off the plaintiff’s view
was held not actionable in itself.
In Browne v. Flower [1911] 1 Ch. 219, Parker J. said the law did not
recognize an easement of privacy when considering the -rights of a ground
floor tenant whose privacy had been invaded by the construction of an out-
door wrought-iron stair which afforded a full view of his bedroom. See also
Dalton v. Angus, supra, note 101, 824 per Lord Blackburn.
As neither a right to a view nor to privacy can be the subject of an
easement, neither can be acquired by prescription. Presumably such rights
can be acquired only by contract (and thence, by restrictive covenant), at
McGILL LAW JOURNAL
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himself by having B consent to a restrictive covenant, and here
the law prescribes certain conditions which must be fulfilled before
the benefit and burden of the covenant will run with the land.”7
If any one of these is not met, A may again -find himself without
a remedy. Or will he? Can A not say, “It is immaterial that I have
no right, as that word is understood in the law of property or con-
tract, to the view, or to my privacy. You, B, are acting unreasonably
in interfering with my enjoyment of my property. For that I can
recover damages”. B’s actions fall directly within the ambit of
Grange J.’s words in Critelli: “[T]he defendant.., made a lawful
and non-negligent user of its property… [yet] the question falls
to be decided on general principles of negligence and nuisance and
the user of land”.” 8
Admittedly the courts would be extremely chary of interfering
with B’s actions in most cases. No one would suggest that develop-
ment should come to a complete halt because all property owners
are entitled to “acquire” views which they enjoy over their neigh-
bours’ lands at a given point in time. But between these extremes
there is surely a via media which can be plotted with reference
to two concepts referred to in Pugliese. First, the plaintiff must
have a right which the law deems worthy of protection.”” In order
least before Penno and Pugliese. However, a relaxation of this rule occurred
in Owen v. O’Connor, supra, note 58, where the defendant’s offending struc-
ture encroached 18 feet onto a public roadway. This constituted a public, as
opposed to a private, nuisance and imposed the added burden on the plaintiff
of proving that she had suffered peculiar damage above that suffered by
the public in general. In spite of these hurdles, she succeeded
in her
damages action for obstruction of her sunlight and view. The key element
in the case was the characterization of the defendant’s action as “unlawful”
because the building encroached on a public way. Would Sugerman J. have
reached the same conclusion if the building had been two feet over the line?
Six inches? These questions merely point up the inadequacy of his concept
of “unlawful”. It has been argued that one has a right ex lure naturae to
aesthetic surroundings: see Silverstone, Visual Pollution: Unaesthetic Use
of Land as Nuisance (1974) 12 Alta L. Rev. 542.
“7 Megarry & Wade, The Law of Real Property 4th ed. (1975), 753 et seq.
“8 Supra, note 66, 293 [emphasis added].
“1 See Restatement (2d) of the Law of Torts (1965) 1, quoted by Howland
J.A., supra, note 6, 615. Although a view is ordinarily not credited with
much weight in the judicial process, there may be cases where it would be
otherwise. Consider a tourist lodge in a scenic area, the major attraction of
which is the unparalleled view afforded by the lodge’s elevated situation. B,
a property owner half way down the slope, decides to erect an immense sign
with flashing neon lights which can be seen by motorists on a highway
several miles away, and refuses to enter into a restrictive covenant with his
neighbour. The lodge’s business will undoubtedly suffer a sharp decline. The
19801
COMMENTS – COMMENTAIRES
to determine which interests are worthy of protection, one must
look to the second concept mentioned in Pugliese: the Sedleigh-
Denfield v. O’Callaghan formula.120 It is clear that this formula
as “the ordinary usages of mankind
works on a sliding scale –
living in society” change, so must the law of nuisance. While the
House of Lords saw nothing wrong with Mr Pickles’ interference
with the Town of Bradford’s water supply in 1895, it is doubtful
whether the same result would be reached today. By parity of
reasoning, Wray C.J.’s restrictions enunciated in 1587 should not
bind us today if our standards of “reasonableness” have changed.
It is clear that what is reasonable can only be measured by balancing
all the relevant factors.121 As the law becomes more sophisticated,
it is capable of protecting a range of interests beyond those of
health, physical comfort, and property damage which have been
historically sanctioned by the action in nuisance. An excellent
example of this expanded view of nuisance is Nor-Video Services Ltd
v. Ontario Hydro,’ 2 where Robins J. found that television reception,
even if it were a purely recreational facility, was an interest worthy
of protection. 23 Consequently, he imposed liability on Ontario Hydro
for constructing a transformer which interfered with the reception
of TV signals by the plaintiff cable TV company, signals which it
in turn would have rebroadcast to its subscribers. 2 4
plaintiff’s interest is thus a zommercial one and arguably is worthy of
protection.
120 See supra, note 61.
121See supra, text accompanying notes 91-100.
122 (1978) 19 O.R. (2d) 107 (H.C.). The case is all the more interesting in
that it comes to a different conclusion from that reached by Buckley J. in
Bridlington Relay, Ltd v. Yorkshire Electricity Board [1965] Ch. 436 on a
similar set of facts. Cf. Morrisset v. St-Germain [1977] C.P. 235.
123 1n so doing he considered the social utility of television (particularly
to a remote community such as Atikokan where the case arose), the ease
with which Ontario Hydro could have located its transformer elsewhere,
and the social utility of the latter’s actions. While on the issue of liability the
balance favoured Nor-Video, on the damages question Hydro won the day.
Nor-Video would have had to spend at least $200,000 to remedy the inter-
ference caused by Hydro, but the programming on the Thunder Bay channel
which Nor-Video had lost was substantially the same as that of a Winnipeg
station which could still be received. Thus the subscribers, whom Nor-Video
in effect represented, had suffered virtually no harm and damages were
limited accordingly.
124 Robins J. equated the position of Nor-Video with that of an individual
subscriber whose viewing pleasure had been interrupted: supra, note 122,
118. The question here becomes one of degree. What range of sensibilities are
we going to protect via the nuisance action? Traditionally, the famous dictum
of Knight-Bruce V.-C. in Walter v. Selfe (1851) 4 De G. & Sm. 315, 322, 64 E.R.
McGILL LAW JOURNAL
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C. The meaning of nuisance after Pugliese
In sum, then, one might say that A, the victim of a nuisance
which takes the form of an interference with his light or support,
may have a remedy against B, the instigator, based on the Pugliese
principle, if that interference exceeds the limits which A can rea-
sonably be expected to tolerate. The novel element after Pugliese
is that A need not necessarily have acquired an easement which
protects his interest in the light or support. As regards air pollution,
it appears that the relevant statute of limitations would still be an
ironclad defence. A’s rights over water are sufficiently protected
by the existing law, save for the problem noted above regarding
the destruction of marine life in public waters. Here Pugliese might
be of assistance, subject, of course, to the peculiarities found in
the law regarding public nuisance, notably the requirement that
the consent of the Attorney-General be obtained prior to the com-
mencement of an action.
Turning to those activities which cannot at present be protected
by means of a negative easement, it is here that Pugliese may find
its fullest flowering. The Critelli decision is an excellent illustration
of the “tort view” of nuisance exemplified in Pugliese; Nor-Video
clearly shares the same philosophy, though it did not have to
examine the property/tort conflict. In effect, Pugliese allows A
to jump two hurdles at once: the absence of a proprietary right
with which B is interfering (a property argument), and the absence
of a covenant, restrictive or otherwise, which protects his pursuit
of the desired activity (a contract argument). Again it must be
emphasized that A has not suddenly acquired a whole flock of
“rights” which are opposable to B; he has simply gained judicial
protection from undue interference by his neighbour. Pugliese re-
presents not so much an alteration of the law as a change in attitude.
Traditionally the courts were content to ask whether B was “validly”
(the adverb of course begs the question) exercising his own proprie-
849, 852 has been the last word on the subject: “[Ojught this inconvenience
to be considered in fact as more than fanciful, more than one of mere delicacy
or fastidiousness, as an inconvenience materially interfering with the ordipary
comfort physically of human existence, not merely according to elegant or
dainty modes and habits of living, but according to plain and sober and
simple notions among the English people?”. As the frontiers of nuisance
expand, inconveniences which might previously have been considered trivial
may well be actionable. The “trivial inconvenience” argument is probably no
longer an absolute defence, but only one factor in the balancing process.
Robins J. looked at the ease with which Ontario Hydro could have avoided
the harm complained of when considering this question: supra, note 122, 119.
19801
COMMENTS – COMMENTAIRES
tary rights when the neighbourly conflict with A arose. Provided
that A could not point to a recognizable proprietary right of his
own which had been infringed, a virtually irrebuttable presumption
existed that B was blameless. What we witness in Pugliese is a
substantial dilution of that presumption; indeed one may argue
that the presumption is now the other way.
As a postscript, one is compelled to ask whether the expose
here presented remains valid after the Supreme Court of Canada
decision in Pugliese.12 5 Regrettably, the decision adds nothing to
the debate. In view of the painstaking efforts of the Ontario Court
of Appeal, coming so soon after the Manitoba Court of Appeal’s
similar judgment in Penno, one can only issue the usual lament
that our highest court did not see fit to bestow its imprimatur on
the work of these appellate courts. 12″ However, until the issue
again reaches the Supreme Court (which is not likely to be in the
near future), one can only conclude that the principles enunciated
by Howland S.A. are the last word on the subject.
VIII. Nuisance in the civil law of Quebec
Every legal system must deal with the problem of regulating
the rights and obligations of neighbouring landowners. It will be
instructive to examine the approach taken by the civil law of Quebec
and to compare it to that adopted by the common law provinces. 27
Upon looking at the dispositions of the Civil Code on the subject,
one is immediately struck by the dichotomy between property and
obligations. Some articles (for example, articles 399, 406, 508 and
585) are found in Book II of the Code, entitled “Of Property, Of
Ownership and its Different Modifications”, while others (notably
articles 1053 and 1057) are found in Book III, Title Third, “Of
Obligations”. A few preliminary observations about these texts are
in order.
125 Supra, notes 6 and 48.
126 Pigeon J. (at p. 115) was of the opinion that the common law rule on
the abstraction of percolating waters had been abrogated by the Ontario
Water Resources Commission Act, R.S.O. 1970, c.332, s. 37. Since the defendant
had abstracted a quantity of percolating water in excess of statutory limits,
his behaviour was unreasonable, and hence, a nuisance.
127 I do not purport to undertake a comprehensive survey of the law of
Quebec on the subject of nuisance (or, to use the more colourful phrase
favoured by Quebec jurists, troubles de voisinage). The purpose here is
simply to set out the broad trends in the jurisprudence of Quebec in order
to make comparisons with the Pugliese approach to the subject. For a
succinct treatment of the law of Quebec in this area see Cohen, Nuisance:
A Proprietary Delict (1968) 14 McGill L.. 124.
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Article 406 C.C. undoubtedly sets forth the basic principle:
Ownership is the right of enjoying and of disposing of things in the most
absolute manner, provided that no use be made of them which is pro-
hibited by law, or by regulation.
Our main concern is not the rule but the exception. What is a use
“prohibited by law or by regulation”? Two restrictions on the
plenary right of ownership are indicated in article 508 and article
1057, paragraph 3. Article 508 says that proprietors are subject
to mutual obligations independently of any stipulation while article
1057, paragraph 3 speaks of such obligations as being imposed on
owners of adjoining properties (terrains adjacents). Is article 508
wider than article 1057? The question has never been addressed in
the jurisprudence. This discrepancy may be overlooked for the
time being, as we are not so much concerned with the debtor of
the obligation as we are with its content. It may seem odd that
article 508 speaks of obligations of proprietors but is included
in the section of the Code dealing with servitudes established by
law. In fact, it has been suggested that these so-called servitudes
lgales’28 are not servitudes at all but circumscriptions of the right
of ownership (as envisaged by article 406), which take the form
of an “obligation passive universelle de respecter le droit de propri6t6
des h6ritages voisins pour le bon ordre social”.n9 In other words,
this section of the Code is not really about property rights stricto
sensu, but is really a partial codification of the law on troubles de
voisinage.130
Thus article 508 C.C. regulates a number of potential “neighbour-
hood conflicts” in a concrete way. How does it deal with innominate
nuisances, such as the cases of careless excavations and percolating
waters discussed earlier? Doctrinal writers and judges have attempt-
128These comprise the “servitudes” of division walls and ditches (arts.
510-532 C.C.); of view (arts. 533-538 C.C.); of eaves (art. 539 C.C.); and of
the right of way in favour of a proprietor whose land is enclosed on all sides
by that of others (arts. 540-544 C.0.). It is worthy of note that in the civil
law one has a qualified right to light, privacy, and view; theoretically, in
the common law one does not.
m29 Caron, Les “servitudes Idgales” sont-elles des servitudes rdelles? (1962)
12 Th6mis 123, 126. See also Cardinal, La Propridtd (1964-65) 67 R. du N. 271,
323, 443; Duchesneau v. Poisson [1950] B.R. 453, 457 et seq., per Pratte 3.;
Collin v. Lemieux [1957] C.S. 385, 388, per Brossard J.; Marler, The Law of
Real Property (1932), 77.
30 If the late Professor Caron’s theory is correct, and we are dealing not
with property rights but with circumscriptions of rights, then an important
corollary is that the legal servitudes are imprescriptible: Caron, supra, note
129, 126. This avoids many of the problems which arise in the common law:
see, e.g., supra, Pt VII-A.
1980]
COMMENTS – COMMENTAIRES
ed to elaborate the general statements of articles 406, 1053 and
1057, paragraph 3 C.C.; however, their pronouncements have not
always been in accord with one another. The greatest controversy
has raged around the question of fault as a precondition to liability
in these matters. It is a fundamental principle of the civil law of
Quebec that in order to succeed in an action for breach of a legal
obligation, one must prove fault,1″‘ damage, and causality. Thus
those cases which seem to adopt the English view of nuisance as
a strict liability offence involving no “fault” component3 2 are gene-
rally discredited by the doctrine.’3
This tendency is unfortunate and, it is submitted, wrong in that
it assumes that article 1053 is the touchstone of liability in this
type of case. In fact, a consensus has recently emerged that the
obligation de voisinage does not flow from article 1053 but rather
from article 406, or a combination of article 406 and 1057. The
trend became evident in the case of Katz v. Reitz, 3 4 in which A
excavated on his property to a depth below that of the water table,
causing water to escape from beneath his neighbour B’s property
and triggering subsidence which virtually destroyed B’s house. While
Lajoie J.A. mentioned article 1053 en passant, the core of his judg-
ment was contained in the following statement:
L’exercice du droit de propridt6, si absolu soit-il, comporte l’obligation
de ne pas nuire h son voisin et de 1indemniser des dommages que l’exer-
cice de ce droit peut lui causer. Cette obligation existe, meme en l’absence
de faute, et r6sulte alors du droit du voisin h l’int6grit6 de son bien et h
la r6paration du prejudice qu’il subit, contre son gr6, de travaux faits par
autrui pour son avantage et profit. 3 5
or want of skill”.
‘3 1″Fault” is defined in art. 1053 as a “positive act, imprudence, neglect
132 The seminal case is that of Drysdale v. Dugas (1896) 26 S.C.R. 20, 22,
where the owner of a livery stable which was “constructed on the most
approved methods as regards ventilation and drainage” was held liable in
damages when offensive odours and noises emanating therefrom disturbed
his neighbour.
‘3 See Baudouin, La responsabilitd civile ddlictuelle (1973), 65-66. Nadeau
& Nadeau, Traitd pratique de la responsabilitd civile ddlictuelle (1971), 233,
argue that fault did indeed exist in the Drysdale situation in that there was a
“ddpassement des droits ordinaires du voisinage”. But surely this type of
“fault”, which is really indistinguishable from the damage itself, was never
contemplated by art. 1053.
’34 [1973] C.A. 230.
1.5Ibid., 237 [emphasis added]. Taschereau and Salvas JJ.A. concurred with
their brother Lajoie. Lajoie J.A. seems to flirt with the theory of risk in the
latter part of the quote. See Haanappel, Faute et risque dans le syst~me
qudbdcois de la responsabilitd civile extra-contractuelle (1978) 24 McGil L.J.
635.
McGILL LAW JOURNAL
[Vol. 25
While Lajoie J.A. seemed to think that this obligation flowed from
article 406, his earlier mention of article 1053 makes matters less
clear than they might be.
A later decision of the Court of Appeal appears to come down
exclusively on the side of article 406. In Carey Canadian Mines Ltd
v. Plante,136 the defendant asbestos mining company had polluted
a river which crossed the plaintiff’s lands, rendering the water
unfit for bathing or drinking. B6langer, Bernier and Montgomery
JJ.A. all agreed, in separate judgments, that the defendant was liable
in damages, but only Bernier J.A. addressed himself to the source or
the obligation. He begarnby saying “Il s’agit d’une action fondde sur
l’obligation de voisinage (art. 406 C.C.) “,137 and then proceeded to
quote the statement by Lajoie J.A.138 before saying that “[c]ette obli-
gation s’dtend h tout le voisinage; il n’est pas ndcessaire que les pro-
pri6t~s soient contigu~s”.8 9 Article 1053 is mentioned nowhere in
any of the judgments. In view of the confusion surrounding the inter-
relationship of the two articles in the jurisprudence, a positive state-
ment clarifying the present position would be welcome.1 40
The members of the Civil Code Revision Office agreed that the
obligation de voisinage was “a specific legal obligation, distinct from
both the obligation set forth in article 1053 C.C. and the concept of
fault implied by that article”. 141 It consists of the obligation “to
refrain from causing any genes intoldrables… regardless of whatever
properties were contiguous.
361 [1975] C.A. 893.
137 Ibid., 899.
138 Reproduced supra, text accompanying note 135.
139 Supra, note 136, 899. The judgments do not indicate whether in fact the
140The case is very interesting from the point of view of remedies. At
first instance, the plaintiff asked for a permanent injunction which Masson
J. refused to grant, “vu l’importance de 1’industrie de l’appelante pour les
citoyens de ce district qui en retirent leur principal moyen de substance”:
see ibid., 894. It is unfortunate that the plaintiff did not appeal from this
part of the judgment, as it is a remarkable example of the law effectively
expropriating individual rights for the benefit of a larger community. As
there is no article in the Code which could conceivably justify Masson J.’s
action, it would be interesting to know on what grounds he felt authorized
to refuse the injunction (his judgment is unreported). Cf. the attitude of
McRuer CJ.H.C. in McKie v. K.V.P. Co., supra, note 87.
141 Civil Code Revision Office, Report on the Qudbec Civil Code (1977),
vol. II, t. 2, 620. The drafters do not mention art. 406 as the source of this
obligation, but do note the obligation of diligence imposed by art. 1057 as
the ancestor of their proposed art. 96. From a practical point of view, it would
probably be best to consider the “exception clause” to art. 406 as the source
of the obligation de voisinage until the Draft Code takes effect.
19801
COMMENTS – COMMENTAIRES
measures have been taken to eliminate such inconveniences”. 14
2 Thus
it would appear to be an obligation of warranty; once the damage is
proved to have been caused by the defendant, he will be unable to
exonerate himself. This is reflected in the proposed article 96:
No person may cause to another damage which exceeds the normal in-
conveniences resulting from proximity [les inconvdnients normaux du
voisinage].143
The terms of the article are imperative; no defence is permitted. Thus,
on the crucial question of fault, the jurisprudence of Quebec has
resiled from the view that a 1053-type fault is necessary, in favour
of a “strict liability” approach very similar to that of the English
common law. Since Katz v. Reitz,’4 the courts would appear to have
stolen a march on the Civil Code Revision Office, such that the
present law in Quebec is not very different from that enunciated in
the proposed article 96.145
We have seen that two of the biggest problems in the common
law of nuisance have been those regarding water rights and the right
of buildings to support. It will be instructive to see how the civil law
of Quebec deals with these matters.
As regards water, the present article 502 seems to contain an un-
pleasant echo of Acton v. Blundell:
He who has a spring on his land may use it and dispose of it as he pleases.
“Spring”, stricto sensu, refers only to a stream which at some point
gushes forth from the earth, and thus would not appear to cover
percolating waters which are wholly subterranean. However, in view
of the fact that the Code nowhere states what rights a proprietor has
in the waters seeping through his land,146 one may well assimilate
their legal status to that of a spring. Indeed, one rather Gothic case
dating from the late nineteenth century has done so. In Robert v.
Les Curg et Marguilliers de l’Oeuvre et Fabrique de Montrdal,47 water
percolated through the graves of diseased bodies which the defendant
parish had buried in its cemetery, infiltrating the plaintiff’s water
supply and causing sickness in his family. Doherty J. of the Superior
Court quoted Acton v. Blundell, 48 article 502 C.C., Roman law, and
142 Ibid., 619.
143 Ibid., vol. I, Book V, art. 96.
144 Supra, note 134.
’45 See also Dumas Transport Inc. v. Cliche [1971] C.A. 160; Larouche,
Chronique de droit des obligations (1975) 6 R.G.D. 193, 221-23.
140 Art. 501 merely states that the lower proprietor cannot prevent the
flow of these waters, and is silent as to whether the upper proprietor can
deprive him of them.
147 (1896) 4 R. de J. 279 (C.S.).
‘ 48 Supra, note 10.
McGILL LAW JOURNAL
[Vol. 25
old French law in coming to the conclusion that the parish could do
whatever it pleased with the subsurface waters, even to the extent
of polluting them. Even before the enactment of the Environment
Quality Act1 49 in 1972, it is doubtful whether a similar decision would
have been reached in recent times. The case remains, however, one of
the very few on the subject in the jurisprudence of Quebec. Should
a Penno or Pugliese type case arise today in Quebec, one would
expect it to be settled in the context of the obligation de voisinage,
along the lines set out in Katz v. Reitz h0 and not according to the
more absolutist view suggested by article 502.1″1
The right of a building to lateral support from neighbouring soil
was well established even before Katz v. Reitz. 1′ 2 Article 414 C.C.
seems to suggest the contrary, insofar as it states that the proprietor
“may make … any … excavations he thinks proper”, but it must be
read as subject to the obligation de voisinage which flows from
article 406. It remains to be seen whether this right of support is a
full-fledged proprietary right ex jure naturae, preventing a neigh-
bouring proprietor from interfering in any way with the support of
any type of structure on adjacent land, or whether it is simply an
example of a neighbourly obligation, importing the idea of reason-
able inconvenience. The line is a fine one, but may have to be drawn
in a particular fact situation. With the current trend away from
strict property rights, it is submitted that the latter approach would
probably prevail. In any case, it is important to remember that one
need not acquire a servitude or easement of support for buildings in
Quebec. This constitutes an important divergence between civil law
and the common law.
149 S.Q. 1972, c. 49 [now L.R.Q. 1977, c. Q-2]. S. 111 states “No recourse
before the civil courts shall be suspended by the fact that it involves an
act or omission constituting an offence within the meaning of this act”.
15 Supra, note 134. Indeed the fact situation in Katz was very similar to
the one in Pugliese. It is interesting to note that the law regarding subsurface
waters was not even considered in Katz v. Reitz.
151 See the Report on the Quebec Civil Code, supra, note 141, vol. II, t. 2,
390 for the codifiers’ comments on the present art. 502 C.C. and its proposed
replacement, art. 40.
152 See Marler, supra, note 129, 77, quoting the old French law on the
subject. In the courts of Quebec, see the obiter of Wurtele J. in Dugas V.
Drysdale (1895) 6 K.B. 278, 283 and Hotte v. Berlind (1916) 22 RJL. n.s. 300
(Cour de Rev.); cf. Falardeau v. Windsor Hotel Co. (1920) 57 S.C. 385 (Cour
de Rev.), now of doubtful validity.
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COMMENTS – COMMENTAIRES
IX. Conclusion
After looking at the new approach taken by Penno and Pugliese
to the law of nuisance in common law Canada, and after examining
recent developments in the civil law of Quebec in the field, one is
struck by a sense of common cause, of parallel paths proceeding
towards the same goal. The key concept in Pugliese is that of inter-
ference beyond that which a landowner could reasonably be expected
to tolerate. 1′ The Civil Code Revision Office speaks of disturbances
beyond les inconvinients normaux du voisinage.’m At the heart of
both of these statements is a quest for a general principle to regulate
neighbourhood conflicts, accompanied by a certain impatience with
technical rules of property law which create more problems than
they solve. The method by which the desired result is being achieved
is the same in both systems: the basis of liability for nuisance is
being shifted from the law of property to the law of obligations.
The latter is suited to the formulation of broad principles governing
the behaviour of man in society, and is a much better vehicle for the
resolution of neighbourhood differences than property law, which
has been elaborated in terms of rights or absence of rights, winners
and losers, black and white. The law has come to realize that
perhaps shades of grey were what was required after all.
The theme is not a new one. The nuisance action was, after all,
only an early form of judicial zoning. We have long inhabited a
world of zoning by-laws, regional planning authorities and de-
molition permits. All aim at creating a harmonious environment in
which the potential conflicts between various incompatible land uses
will be minimized. All impose obligations or restrictions on land-
owners which reduce the scope of activities in which one can engage
on that land. At the heart of all this legislation is the idea that one
must refrain from certain land uses in the interests of a larger com-
munity – a tort, not a property, concept.
The range of things one can do with one’s property grows more
and more circumscribed. Property lawyers lament that the rules of
their art are no more than interesting baubles cast upon the shore,
to be picked up, admired for an instant, then thrown back into the
sea of reasonableness. To this, one can only reply that the tide is
inexorable.
Philip Girard*
16 Supra, text circa note 64.
154 Supra, text accompanying note 143.
* Assistant Professor, Faculty of Law, University of Western Ontario.
