Injunctions to Protect Property

• Author: Jeffrey Berryman
• Pages: 202-227

202

CHA PTER 8

INJUNCTIONS TO

PROTECT PROPERTY

A. INT RODUCTION

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.

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 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.).