Injunctions to Protect Property

AuthorJeffrey Berryman
We saw in the previous chapter that the ty pe of right infringed has
a bearing on remedi al choice. During much of the period spann ing
equity’s formative development, equity traditionally accorded realty a
reverence associated with the fact that it was the single most import ant
asset held by an individual, def‌ining both social status and wealth.
Industriali zation enhanced the value of land as a commod ity upon
which to build much needed housing, to carry utility services without
impeding other use s of the land, to give support to adjoining structures,
and for the minerals th at could be mined. Faced with a violation of
these property intere sts, the remedy in common law was def‌icient in
one important respect. Common law d amages could only be assess ed
for past wrongs, which left the property owner w ith the prospect of
facing endless future act ions for compensation. Equity’s answer was
to grant a perpetual injunction prohibiting the trespass and restor-
ing any damage that had been incurred. Only after Lord Cairns’ Act
was passed in 1858,1 allowing dam ages in lieu of an injunction, could
compensation be given for prospective damages not ref‌lected in the
diminution of the property’s market value. Again st this state of affairs,
1 An Act to amend the Cour se of Procedure in the High Court of Chancery, the Court
of Chancery in Ireland , and the Court of Chancery of the Cou nty Palatine of Lan-
ca ste r, 1858 (U.K.), 21 & 22 Vict., c. 27.
Injunctions to Prot ect Property 203
courts developed a distinct preference for injunctive relief. The injunc-
tion became synonymous w ith the protection of property and reif‌ied
the notion that property could only be tra nsferred through voluntary
consensual excha nge. However, equity did m aintain the discretionary
nature of the relief — examples where court s refused an injunction
order can be found throughout the law reports of this era.2
Today we are more apt to conceptualize “property” as an abstract
bundle of rights. The power of an owner to insist upon voluntar y con-
sensual exchange as the only means of appropriation by another has
been truncated, particularly by legislation. For example, many crow n
agencies and municipalities have a stat utory right of ex propriation th at
substitutes a fair ma rket value for the lost property, with only limited
rights of objection accorded a property owner. Another important li m-
itation on the rights of an owner is that of usage through zoning and
other planning restrictions. Private restraints come through restrictive
covenants and even mortgage documents. With th is level of encum-
brances on realty, it is perhaps not surprising to f‌ind that courts are
now reappraising the use of injunctions i n this area, part icularly with
respect to nuisance actions.
One of the main impediments to fashioning appropriate relief in
this area is the binary nature of injunctive relief. If the injunction is
denied then the court appears to b e condoning a private right of ex-
propriation on the tortfeasor. On the other hand, if t he injunction is
granted this m ay in fact inhibit an otherw ise socially desirable activity.
To overcome thi s impediment, some courts have been w illing to sus-
pend the operation of an injunction, thus both valid ating the property
holder’s claim as well as the reasonableness of the defendant’s activity.
Another approach has been to pay greater attention to the quantif‌ica-
tion of damages — either in lieu of an injunction, or as common law
damages measured by a lost opportunity to bargain, or as restitution-
ary damages. Yet another response has been to tailor the ter ms of the
injunction by the inclusion of performance-ty pe standards in an attempt
to accommodate competing uses of land.
Trespass is an act of direct inter ference with t he exclusive possession of
another person’s land, and an injunction has norma lly been granted in
vindication of the property ow ner’s exclusive rights. Thus, in Lew vest
2 See, for example, L eade r v. Moody (1875), L.R. 20 Eq. 145 (C.A.).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT