|Injurious affection in the absence of a taking:
a historical analysis in the Canadian (B.C.) context
PART 1: INTRODUCTION
What, in Canadian jurisprudence, is known as "injurious affection in the absence of a taking",
or to some as "injurious affection simpliciter", the remedy referred to in section 41 of the
Expropriation Act of British Columbia, is referred to in the United States as inverse condemnation
or regulatory taking. It refers to the right or ability of a landowner to claim compensation from a public
authority when the authority constructs a public work or takes other steps which adversely affect the value
of the landowner's property, but with respect to which no land is physically taken from the landowner.
The question of the compensability of claims under that head is beset by unclear margins and accordingly
has spawned extensive debate in judicial circles and, sadly but understandably, to some lesser extent
in legislative circles.
The term "injurious affection in the absence of a taking" is in itself an awkward description
of a head of compensation which may properly be viewed as having been extrapolated from the provisions
of the 1845 English Lands Clauses Consolidation Act by the English courts in the mid-19th
century notwithstanding the fact that the legislature made no apparent attempt in that Act to create
such a head of claim. Compensation for injurious affection in the absence of a taking may be viewed as
a remedy created and refined, with, it appears, some difficulty, by the judiciary.
The courts have not been comfortable in establishing concrete principles in this area. The Lord
Chancellor (English House of Lords) engaged in the following exercise of judicial introspection
while attempting to define the state of the law with respect to injurious affection in the absence
of a taking as established by his own court:
It is your Lordships' duty to maintain, as far as you possibly can, the authority of all former
decisions of this House; and although later decisions may have interpreted and limited the application
of earlier, they ought not (without some unavoidable necessity) to be treated as conflicting. The
reasons which learned Lords who concurred in a particular decision may have assigned for their opinions,
have not the same degree of authority with the decisions themselves. A Judgment which is right, and
consistent with sound principles, upon the facts and circumstances of the case which the House had to
decide, need not be construed as laying down a rule for a substantially different state of facts and
circumstances, though some propositions, wider than the case itself required, may appear to have received
countenance from those who then advised the House. (Caledonian Railway Co. v. Walker's Trustees
- (1882) 7 App. Cas. 259)
In the quotation set out above, and in those that follow, we get a hint of the difficulties encountered
by the courts in their attempt to both legislate and interpret their own legislation in claims for
compensation for injurious affection in the absence of a taking.
In the same case Lord Blackburn makes his finding (where access to the claimant's spinning mill was made less convenient as a result of the railway works in the neighborhood) in favour of compensation, but presumably chastened by the words of the Lord Chancellor as set out above, avoids stating the "rule" upon which he relies, by saying at page 299:
Now I do not dispute that an obstruction to a highway may be so distant from lands, that no one could reasonably find that the lands were appreciably damaged by the obstruction, but I think it unnecessary to try to give a definition of that distance. It is enough to say that in this case the distance is not too great.
Lord Bramwell says in the same vein, and further confirming the existence of a certain judicial guilty
conscience arising out of the inability of the courts to firmly delineate the boundaries of compensation:
My Lords, I think it convenient to consider first whether the land injuriously affected or which will
be injuriously affected by the works of the respondents on the lands taken, is land held with the land
taken within the meaning of 8 & 9 Vict., c. 18, s. 49. I think it is. I shall not attempt an exhaustive
definition of those words; I should probably fail: I should leave out something that ought to be included,
and include something that ought to be left out, and so give rise to future controversies. The words
are not words of art. They are ordinary language, and must be understood with reference to their object.
I think the present case is within them. (Cowper-Essex v. Acton (Local Board)
- (1889) 14 App. Cas. 153)
The statement made by Lord Westbury in Ricket v. Metropolitan Railway Co., (1867) L.R. 2 H.L. 175,
is also illustrative:
It is a matter of regret that our judicial institution should admit of these anomalies.
And further, in the same case:
It is a striking example of the uncertainty of the law which rests on judicial decisions.
We find further evidence of apparent judicial insecurity in the words of Lord Colonsay, in the opening
paragraph of his reasons for judgment in Hammersmith and City Railway Co. v. Brand,
(1868) 38 L.J. Q.B. 265:
My Lords, I have, I confess, found this case to be attended with much difficulty and I think I need
not refrain from stating that, when I find that there has been so much difference of opinion in regard
to it, and some fluctuations of opinions among the Judges who decided it in the other courts, and that
there is, I believe, a difference of opinion now among your Lordships.
Lord Cairns says at page 215 of the same case:
My Lords, in a case which certainly is not without difficulties, and which has caused much difference
of opinion in the courts below, and among the learned Judges who have assisted your Lordships, it is
not surprising that the same difference of opinion would reach your Lordships' House; and I regret
very much that I am unable to concur in the views of my noble and learned friends who have just spoken.
In Duke of Buccleuch v. Metropolitan Board of Works, (1871-72) L.R. 5 H.L. 418, Lord Chelmsford says in the opening words of
My Lords, in this case, the four Judges of the Court of Exchequer were unanimous in favour of the
plaintiff..., but in the Court of Exchequer Chamber their Judgment was reversed by a majority of
four Judges to three; the opinions of seven Judges having thus been overruled by the minority of four.
Decisions of the Canadian courts in cases such as Tener v. British Columbia  1 S.C.R. 533
indicate that there may remain in modern times the same sorts of concerns on the part of judges as were
expressed in the earlier English decisions. The Supreme Court of Canada in the case of Tener,
by taking a broader view of what constitutes an expropriation than what may otherwise have been expected,
avoided the necessity of wrestling with the concept of injurious affection in the absence of a taking by,
somewhat artificially some would say, finding a taking to have occurred.
The balance of this paper attempts to analyze the nature of the concept known as injurious affection
in the absence of a taking, and the development and nurturing by the courts of that head of compensation
with little in the way of statutory underpinning except for s. 68 of the English Lands Clauses
Consolidation Act (1845) and the Canadian lineal descendants of that section. We will deal in
further detail with the attempts of courts and legislators to balance the contemplation that public
works are for the benefit of the public generally and as a result the public must collectively bear
the costs, in the broad sense, of creating the public work with the perception that particular members
of the public may be called upon to bear a higher level of those costs than their neighbours - leading
to the question of whether or not compensation should be provided to them, and if so, on what basis.
The kinds of factual situations which give rise to claims for injurious affection in the absence of a
taking are broad in scope. The early English cases often involved the lessened enjoyment or utility of
landholdings resulting from construction of railway lines and construction of works on riverbanks.
Many of those cases involved alteration or elimination of access to highways or rivers, and others
vibration or other disturbance resulting from train traffic through residential or business neighborhoods.
The Canadian cases arise out of such fact patterns as interference with access, or devaluation of
property as a result of development of riverfront and dockage facilities, highway developments, and
major projects such as the St. Lawrence Seaway development.
In the Canadian, and particularly the British Columbia context, Crown grants which issued title to
settlers (in many cases not much longer ago than 100 years) did not make specific provision for reservation
of corridors or public lands for the later installation of public works, with the exception of resumption
rights (the right of the Crown to take back, without compensation, 1/20th of the land granted in the
original Crown Grant). The required level of planning to make such reservations did not exist at the time
lands were originally granted. There was no zoning or Official Community Plans to delineate areas designated
for industrial or public institutional uses. Those whose function it was to draft and administer the various
land acts in B.C. perceived themselves to have other more pressing matters at hand (the encouraging of
immediate settlement by European settlers, for instance, so that B.C. did not become a part of the U.S.
as a result of being populated by colonists from the south), and of course the future is not that accurately
predictable. The construction of public works which was necessitated by the growth of both populations
and communities has necessarily required the imposition of those public works on or near private landholdings
with, in many cases, adverse consequences on value.
When we look to find a reason for the late (in terms of legal history) development of the remedy of
compensation for injurious affection in the absence of a taking we are drawn to a number of social and
legal factors which may be relevant.
The leading cases dealing with the question of compensation for injurious affection in the absence of a
taking from the mid part of the nineteenth century to the present are marked by a remarkable lack of
unanimity and strong dissents on the part of the judges. There may be, however, an apparent relationship
between the awarding of compensation for injurious affection in the absence of a taking and the nature of
the works undertaken. It may be noted that in the United Kingdom the bulk of the decisions which support
a claim for compensation for injurious affection in the absence of a taking arise after 1869. That may be
correlated with the completion of the development of significant public works in the United Kingdom,
particularly London, necessary for the preservation of life. Extensive revisions to the sewerage and
drainage works of London were completed in 1865 following upon the discovery that cholera, which had raged
from time to time, and particularly from 1830 or so, was caused by germs associated with poor public health
practices. The cases which found the remedy of compensation for injurious affection with no taking to exist
began to appear after 1865, when extensive railway development was underway. The railway developments may
be viewed as being infra-structure developments, not basic public works required for the preservation of life.
When we look at the Canadian cases through to the middle of this century, we find a rather more restrictive
view of the remedy being taken. That can perhaps be explained by the fact that most of the public works
in Canada during that period of time were viewed as being necessary for the development of the country,
or basic works necessary for a reasonable standard of living. It may be that in this country we are just
in the process of embarking on a phase in which public works are viewed as being more infra-structural in
nature and less necessary to ensure a basic standard of living for the population, in which case both the
Legislature and the courts may be expected to take a more liberal view of the remedy.
It may be as well that in developed or mature societies there is a higher proportion of the population
owning property, as opposed to renting. In that case a higher proportion of an individual's worth is
represented by residential real estate, so the stakes become higher when a public project interferes with
As well, in recent times the breadth of government generally, and the protection given to public bodies
from claims in nuisance may have been perceived by the courts as insulating those public bodies excessively
from claims for compensation when the activities of those bodies have harmed, substantially, landowners.