Injunctions to Protect Property

• Author: Jeffrey Berryman
• Pages: 202-227

202

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 import ant

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 use s of the land, to give support to adjoining structures,

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 restor-

ing any damage that had been incurred. Only after Lord Cairns’ Act

was passed in 1858,1 allowing damages in lieu of an injunction, could

compensation be given for prospective damages not ref‌lected in the

diminution of the property’s market value. Against this state of affairs,

1An 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 Property203

courts developed a distinct preference for injunctive relief. The injunc-

tion became synonymous with the protection of property and reif‌ied

the notion that property could only be transferred through voluntary

consensual exchange. However, equity did maintain the discretionary

nature of the relief — examples where courts 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 voluntary con-

sensual exchange as the only means of appropriation by another has

been truncated, particularly by legislation. For example, many crown

agencies and municipalities have a stat utory right of ex propriation th at

substitutes a fair market value for the lost property, with only limited

rights of objection accorded a property owner. Another important lim-

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 this level of encum-

brances on realty, it is perhaps not surprising to f‌ind that courts are

now reappraising the use of injunctions in this area, particularly 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 be condoning a private right of ex-

propriation on the tortfeasor. On the other hand, if the injunction is

granted this may in fact inhibit an otherwise socially desirable activity.

To overcome this impediment, some courts have been willing to sus-

pend the operation of an injunction, thus both validating 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 terms of the

injunction by the inclusion of performance-type standards in an attempt

to accommodate competing uses of land.

B. INJUNCTIONS AND TRESPASS

Trespass is an act of direct inter ference with t he exclusive possession of

another person’s land, and an injunction has normally been granted in

vindication of the property owner’s exclusive rights. Thus, in Lewvest

2 See, for example, L eade r v.Moody (1875), L.R. 20 Eq. 145 (C.A.).