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Kostal, R --- "Private Property and the Abuse of Rights in Victorian England: The Story of Edward Pickles and Bradford Water Supply" [2004] OtaLawRw 13; (2004) 10 Otago Law Review 683

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

(By Michael Taggart,

Oxford University Press, Oxford, 2002, xxiii+235.)

This is a history book about a point of common law. As the general editor explains, Michael Taggart is interested in “the relevance of motive, and in particular malicious motive, to tortious liability, and the merits and demerits of adopting a doctrine of abuse of rights into the common law” (p. vii). More specifically, the author asks how it came to be that at English common law

“it is not unlawful for a property owner to exercise his or her property rights maliciously and to the detriment of others or the public interest”. (p.1) Taggart’s approach is to set forth an exhaustive narrative history of the key Victorian case on point, Mayor of Bradford v. Pickles (1895), and then, in the second half of the book, to elaborate on a series of related topics: the law of property and water rights as it developed after 1840; the aborted development of the law of abuse of rights; and on the role of the concept of malice in the law of torts.

The Pickles case provides the main empirical basis of the study. The case concerned litigation launched by the Corporation of Bradford against a landowner called Edward Pickles. Bradford wanted to enjoin Pickles from taking steps on his land to divert the flow of a fresh water spring that had satisfied the thirst of its townspeople for some 40 years. Pickles’ drainage plan, the Corporation alleged, had been contrived by him to extort large sums of money from the public purse. On the premiss that Pickles’ actions were illegal at common law and/or barred by private statute, Bradford refused to negotiate a price for the water. The essence of the defendant’s answer was that he had property in the spring and its flow of water, and an absolute legal right to dispose of it — even to waste it — as he liked. The lower courts disagreed on the case. When the litigation reached the House of Lords, however, Pickles prevailed. By this time, ironically, the Corporation of Bradford no longer needed the disputed water. Pickles sold his property and emigrated to Canada.

Professor Taggart’s book brims with sophisticated, carefully rendered, and clearly written legal scholarship. It tackles an important subject-matter. In the respectful opinion of this reviewer, however, it is not entirely successful as a work of sustained historical scholarship. Private Property and the Abuse of Rights is published by Oxford Press as part of its series in “Modern Legal History”. The fit is not altogether an easy one. It is a curious omission, for instance, that the Prologue to Private Property does not set forth a discernible historical thesis. Nor does it discuss historiography, methodology, or historical aims. Readers are apprised that Pickles ultimately prevailed in the litigation, and that this result was contrary to the collective good of the people of Bradford. But the reader searches in vain for an explicit hypothesis as to why Pickles won, and why his victory (or Bradford’s defeat) should be regarded as significant historically. While the final four chapters of the book offer fragmentary answers, nowhere are they woven together as a unified interpretation of the book’s subject-matter. In the first four chapters of the book, the Pickles case — its genesis, litigants, pleadings, legal arguments and judgments — is painstakingly reconstructed. These sections are models of exact primary research. Taggart traces how in the nineteenth century the Corporation of Bradford struggled to supply a burgeoning population and industrial base with water. On a number of occasions the town went to parliament to secure such private legislation so as to secure more water and protect existing sources. In the 1850s water flowing from the Pickles’ farm was crucial to Bradford’s supply, and so it remained in the late 1880s, when Edward Pickles renewed threats to divert the water in aid of a mining scheme. After some failed negotiation, and when Pickles began to sink shafts in 1892, the Corporation sued for an injunction. “The gravamen of the Corporation’s case”, Taggart explains, “was to show that Pickles’ proposed works were so unprecedented, inefficient, and contrived that the only possible inference was that he wanted to divert the water in order to injure the Corporation, and thereby force it to buy his land at a premium”.(p. 50) The Corporation also argued that Pickles’ actions contravened its private legislation. The Corporation won at trial but, in 1894, Pickles prevailed in the Court of Appeal. In the House of Lords it was held that Pickles’ motives, however malicious, did not diminish his property rights. Pickles was legally entitled to divert his spring water in a way of no lasting value to him but to the great detriment of the people of Bradford. Taggart thinks that this decision was contingent. In his view, the relevant (case and statutory) law was extremely open-ended, and the appellant counsel provided a number of cogent legal reasons why Bradford ought to have won the case. In the result, however, the most exalted English judges were almost of one mind that Pickles should prevail. But why were they?

A substantial part of Taggart’s answer is revealed in his chapter (Six) on the doctrine of the abuse of rights. This section consists of a long and learned analysis of why, in general, British common law judges were hostile toward the abuse of rights doctrine.(p. 166) Only discursively, however, does the chapter address the pivotal historical event of the book. Readers are informed that in the nineteenth century some civilian jurisdictions (France and Scotland are singled out) evolved a robust doctrine of abuse of rights, and that features of the doctrine also were present in the English law of equity. Taggart then offers a multi-factorial explanation for why the law lords rejected these approaches to the case. Here Taggart identifies the mainsprings of the Pickles decision in entrenched habits of legal reasoning. The law lords preferred the positivism of precedents over the moralistic abstractions of “rights” talk, and the unsystematic particularism of common law pleading over the “generalization” that was inherent to the doctrine of abuse of rights. Taggart also suggests that the appellate judges were arch conservatives who thought that Bradford’s claims smacked of socialism. But this line of analysis is quickly discontinued for further discussion of the jurisprudential basis of the decision. When all was said and done, Taggart contends, England’s senior judges were dyed-in-the-wool legal formalists who eschewed policy analysis for the safety of deductive legal reasoning. The fourth chapter of the book contains another strand of the argument: an analysis of the statutes and statutory interpretation upon which, in part, the Pickles case pivoted. In 1842 Bradford obtained a private act that incorporated a waterworks company and provided legal powers with which to construct new water facilities and a pipeline below the Pickles farm. Taggart argues that Bradford “took its stand against Edward Pickles on the statute first”.(p. 75) However, the provisions of the private act relating to the powers of the water company to protect its supply of water were ambiguous. Bradford, of course, argued that some provisions indicated such powers, and that the act would be an expensive folly without them. Pickles claimed that since the act did not specifically diminish his property rights, nor had his forebears been compensated for them, it did not compromise his ordinary property rights at common law. Taggart is adamant that when the language of the private act is considered together with the physical location of Pickles’ spring, the only sensible interpretation is that it was drafted to prevent the “diversion, alteration, or appropriation of the water by any means whatsoever”.(p. 93). The author goes so far as to argue that in Pickles the appellate judges acted in “disobedience of the legislature” because of their preference for property rights and their inveterate hostility (as common lawyers) to statute. In the result, however, only one of the eleven high court judges who heard the case thought that Bradford had made a convincing case on the language of the private statute. Taggart’s view is that Pickles “illustrates the potency of the common law principle that whenever possible statutes will be interpreted by courts to protect the property interests of individuals”. (p. 93).

From statutory interpretation Taggart moves on to a minute consideration of the English legal history of property in water. The author wants to know how the law of property in subterranean water was understood when Bradford obtained its private act, and how it evolved in the subsequent half century. His answer is that the law was sketchy and uncertain in the 1840s and that it was not much improved by subsequent litigation. After some explication of the leading authorities and cases in the field, including the American law from the era, Taggart concludes that the judges of England’s high courts continued stubbornly to cling to a doctrine of absolute ownership in percolating water even after their American and continental counterparts began to evolve doctrines of reasonable use. The seventh and final chapter of the book addresses the notion of malicious motive in the law of torts. In the late nineteenth century this subject was a matter of “considerable legal interest”(p. 167) on both sides of the English Atlantic. For centuries common lawyers had supposed that motive was irrelevant to civil liability. What mattered was whether an action was lawful, not whether it was good or ill-intentioned. But by the 1890s Pollock thought that there was authority for the idea of prima facie tort, i.e., the principle that the intentional infliction of harm against a person or her property without legal justification always was tortious. In 1894 Oliver Wendell Holmes floated a similar idea in the Harvard Law Review. To Taggart’s evident regret, however, these theories made little impression on the “formalistic conception of adjudication prevalent in Britain”.(p. 179) In their refusal to incorporate the concept of malice in civil law, the judges had refused yet another pathway to innovation and justice. In taking this kind of stance it is obvious that Private Property and the Abuse of Rights in Victorian England is not a conventional book of academic history. For it is not mainly concerned with what happened and why it happened that way. In fact the book is mainly concerned with what did not happen — the acceptance of an abuse of rights doctrine by common law judges —and why it is a shame it did not happen that way.At bottom this is a book about judging judges (though long dead ones), and their approach to law-making. In its preoccupations and technique it is a hybrid of historical and normative jurisprudence. What Professor Taggart labours to show is that the Pickles case presented an exceptionally propitious opportunity to put the common law on a more sophisticated and public-minded footing. Here was the archetypal situation in which individual civil rights (read: property rights) ought to have yielded to a utilitarian ethic. But, alas, it was not to be. The natural progression of the law was thwarted by judges and their heedless loyalty to property and positivism.

R. W. Kostal,

University of Western Ontario Law School, London, Ontario,

Canada.