Injunctions to Protect Property

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 118-130

CHAPTER

8

INJUNCTIONS

TO

PROTECT

PROPERTY

A

INTRODUCTION

We saw in the

previous chapter that

the

type

of

right

infringed

has a

bearing

on

remedial choice. During much

of the

period spanning

equity's

formative

development, equity traditionally accorded realty

a

reverence associated with

the

fact

that

it was the

single most important

asset held

by an

individual, defining both social status

and

wealth.

Industrialization enhanced

the

value

of

land

as a

commodity upon

which

to

build much needed housing,

to

carry utility services without

impeding other uses

of the

land,

to

give support

to

adjoining struc-

tures,

and for the

minerals that

could

be

mined.

Faced

with

a

violation

of

these property interests,

the

remedy

in

common

law was

deficient

in

one

important respect. Common

law

damages could only

be

assessed

for

past wrongs, which

left

the

property owner with

the

prospect

of

facing

endless

future

actions

for

compensation. Equity's answer

was to

grant

a

perpetual injunction, prohibiting

the

trespass

and

restoring

any

damage

that

had

been incurred. Only

after

Lord

Cairns'

Act was

passed

in

1858,l

allowing

damages

in

lieu

of an

injunction, could

compensa-

tion

be

given

for

prospective damages

not

reflected

in the

diminution

1 An Act to

amend

the

Course

of

Procedure

in the

High Court

of

Chancery

in

Ireland,

and

the

Court

of

Chancery

of

the

Country Palatine

of

Lancaster,

1858

(U.K.)

21, & 22

Viet.,

c. 27.

118