Comparative Legal History

Question One:

The main issue in this scenario is whether Jacob has a remedy for the damage done to his land caused by the rainwater runoff from the neighbouring restaurant’s sculpture.

Roman Law:

In Roman law, there is the actio aquae pluviae arcendae, which imposed liability for damage produced by rainwater.[1] The defendant had to have built a structure that caused the rainwater to damage the plaintiff’s land. The remedy was for the defendant to remove the structure causing harm and pay damages to the plaintiff. In Jacob’s situation this action would apply because damages resulted from rainwater runoff from the sculpture. Hence Jacob would receive damages from his neighbours as well as ensure the sculpture’s removal.

English Law:

In English Law, there is private nuisance, which is “the unreasonable and unjustified intervention by the defendant in the use of his land with the plaintiff’s right to enjoy his property.”[2] The ways judges decide whether an act constitutes a nuisance are by looking at the duration, extent and type of disturbance, the type of neighbourhood, the motivation and offensiveness. The remedy for an action of nuisance is either an injunction or a payment of damages.[3] In this case the type and the extent of disturbance must be viewed. Flooding a neighbours land constitutes a nuisance according to Sedleigh-Denfield v O’Callaghan.[4] Since Jacob’s land was damaged by the rainwater runoff that caused erosion, making it difficult to plant his vineyard, he would use the remedy of claiming for damages from the restaurant.

Question Two:

Here, there are two issues requiring remedies: the disturbances from the neon sign, movement of club patrons and the noise and the unsavoury people that the club attracts because of the nature of the business.

Roman Law:

Roman Law has no remedies for the issues Michaela is facing due to Rebels Inc. Roman society was different from South Africa’s; therefore it is apparent that it did not have laws that would apply to every part of our society and all the modern issues that it faces. It provided actions for specific issues leaving gaps where other issues were not dealt with. It usually provided remedies for issues causing physical damage but not antisocial behaviour. Thus, issues like Michaela’s that are mainly to do with antisocial behaviour were not provided for in Roman Law.

English Law:

English Law has much more to say about Michaela’s situation. In establishing whether the first issue of disturbances is a nuisance the reasoning of judges in similar case must be viewed. In St. Helen’s Smelting Co. v Tipping,[5] Lord Westbury reasons that the determining factor of whether personal inconvenience is grounds for nuisance depends upon the neighbourhood in which the act occurs. He says that certain inconveniences are expected in particular areas. Since Michaela is living in a run down area in the city centre , these sorts of disturbances are expected in the area and would appear not to be a nuisance.

There are grounds for nuisance for the issue regarding the people the club attracts after hours. In Laws v Florinplace Ltd.,[6] the sex centre attracted “unbalanced and perverted” people causing an affront to the area resulting in nuisance. Since these people do not attend the club it would appear that the club holds no responsibility but, according to Sedleigh-Denfield[7], if a nuisance is continued by someone who ought to have been aware of it then he is liable. The club owners ought to have been aware and are liable in nuisance. The remedy for this would be an injunction.

Question Three:

There are two issues in this scenario. The first is whether Lee-Ann can get a remedy for the abstraction of water of the underground stream that feeds her lake. The second is whether she has remedy against the potential collapse of her wall as a result of the borehole.

Roman Law:

In Roman law there is no specific action for the abstraction of underground water as a result of digging a borehole on one’s own land. This was because it was seen as normal use of one’s land. Therefore, Lee-Ann would have no remedy for her lake drying up as a result of Mohamed’s borehole.

There is the damnum infectum remedy that provides for potential losses that may occur by restricting otherwise legitimate activities on a neighbour’s land.[8] A person would get a promise from his neighbour giving him indemnity if loss occurred as a result of construction. Therefore, Lee-Ann would be able to use the damnum infectum remedy if Mohamed’s borehole caused the collapse of her wall.

English Law:

In English Law, acts are determined to be nuisance according to case law and judicial discretion. Lee-Ann’s lake dries up as a result of Mohamed abstracting the water caused by the borehole. In deciding whether this constitutes nuisance cases must be examined. Chasemore v Richards[9] deals with a similar factual scenario where the judge held that this sort of act is not a nuisance reasoning that the borehole was dug on the defendant’s own land and it was his right to do what he pleased with it. Lord Halsbury ruled similarly in Bradford Corporation v Pickles,[10] deciding in favour of the defendant. In this situation, Lee-Ann would have no remedy from Mohamed because his act did not constitute a nuisance.

English Law, however, does not provide for the second situation of the potential of the wall collapsing due to the digging of the borehole. This is because English Law does not have a remedy for a potential damage. The damage would have to occur already for there to be a claim in nuisance or negligence.

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[1] David Johnston Roman Law in Context (1999) 72.
[2] Sedleigh-Denfield v O’Callaghan [140] AC 880.
[3] Miller v Jackson [1977] QB 966.
[4] Supra note 2.
[5] (1865) 11 H.L. Cas. 642 (H.L.).
[6] [1981] 1 All E.R. 659 (Ch.).
[7] Supra note 2.
[8] Supra note 1 at 73.
[9] (1859) 7 HL Cas 349.
[10] [1895-1899] All ER Rep 984.