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Injurious affection in the absence of a taking:
a historical analysis in the Canadian (B.C.) context
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Robert S. Cosburn
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PART 3: INJURIOUS AFFECTION IN THE ABSENCE OF A TAKING AND NUISANCE |
| 22. |
The concept of injurious affection with no taking has a direct and significant relationship to the common law of public nuisance. An appreciation of that connection operates to clarify and make understandable the precise nature of the legal creature referred to as injurious affection when there is no taking. Where the broad ambit of statutory authority given to a public body makes a claim for damages for public nuisance on the part of a landowner impossible to maintain, the law of compensation for injurious affection in the absence of a taking has been used by the courts to "fill in the gaps" when obvious harm which the courts felt should be compensated has occurred.
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| 23. |
Public nuisance may be defined as interference with the use or enjoyment of land, arising out of an unlawful act or omission to discharge a legal duty, which constitutes an interference with a right common to all citizens. The law of public nuisance subjects the offender only to penalties imposed by the criminal law, leaving no right of civil action, except in the case of a person more "particularly aggrieved" than the general population affected. For instance if the activity of a public authority results in the blockage of a public highway (the passage over which highway is a right common to all citizens) the public authority in question is, in general, subject only to being charged with a criminal or quasi criminal offense. Nobody, if all citizens are equally inconvenienced or adversely affected, has a right of action in the civil courts for damages or "compensation". If however one citizen in the neighborhood is more particularly adversely affected than are others by the closure of the highway, that person alone may have a right of action in the civil courts for damages for public nuisance.
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| 24. |
When a public authority is authorized by statute to engage in an activity, for instance the construction of railway works which results in the blockage of a road, the statute authorizing those works makes the blockage "legal". As such the authority, as long as it is operating within the boundaries of its statutory authority, is not subject to penalty by invocation of the criminal law, nor is it subject to a claim for damages in nuisance by a neighbouring landowner "particularly aggrieved" or otherwise, nor is the authority, in the absence of a statute giving a right to claim compensation to any persons affected, subject to a claim for compensation. In the result an act of public nuisance which would render the authority subject to prosecution, or liable in damage at the suit of a person particularly aggrieved, may be legitimized, making the authority subject to neither, by statute. If compensation (for injurious affection in the absence of a taking) is not authorized by that or another statute there is not compensation available for any landowners adversely affected by the project.
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| 25. |
Although the contemplation when the construction of public works is engaged in is that those works will enure more or less equally to the benefit of all members of the community, thereby outweighing any inconvenience suffered in common by all, (the principle behind the general law of public nuisance) legislators became of the view that a person who had part of his property taken for the purpose of constructing a public work was particularly aggrieved or damaged more than his neighbours who had not lost land to the project, and should be compensated. Expropriation statues providing a right to compensation to a party from whom land was taken resulted. In summary, then, when a statute makes lawful an act on the part of an authority which otherwise would be considered a public nuisance there is no remedy or penalty to which the authority is subject. Because persons from whom land was taken for the project are perceived to suffer a more grievous injury to their estate than the general community, they have been given the right to compensation for the value of the land taken, including the amount by which the value of the remainder was reduced by the loss of the land taken or by the use to which the authority has put the land taken. As a result, persons from whom land was taken cease to be, conceptually, members of the general community affected by the project by virtue of their separate treatment by the statute. That leaves only persons whose property has been adversely affected but from whose land no taking occurred as the "pool" of potentially aggrieved persons. The difficult question faced by the legislators and the courts, and which gives rise to the issues dealt with in this paper is how to deal with the latter group - persons whose property may be devalued by the construction of a public work in their vicinity, but from whom no land was taken.
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| 26. |
The relationship between the test of "particular aggrievement" to establish a right to claim damages in public nuisance may be balanced against the specific betterment concept which may allow any increase in value of the property of a particular owner over and above the increase enjoyed by his neighbors, resulting from the public work, to be set off against any claim he may make for compensation.
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| 27. |
Once a statutory right, pursuant, for instance, to the U.K. Lands Clauses Consolidation Act (1845), to claim compensation for injurious affection with no taking is created (either by statute or by the courts, depending on which view of s. 68 is subscribed to), the principles common to the law of public nuisance were transposed to form part of the process intended to define the class of persons who could claim. The problem, of course, if claims for compensation for injurious affection with no taking are allowed to be made, is where the line is to be drawn between those who will be awarded compensation and those who will not. Any particular public project could be fairly said to affect a very great number of persons adversely with respect to such questions of access, view, noise, and lowered values because of change in the character of the neighbourhood. The early decisions attempted to resolve this difficulty by stating that only those persons injuriously-affected-but-not-taken-from particularly aggrieved (more in extent than their neighbours) by the works have a right to claim for injurious affection in the absence of a taking. Those whose estate in their lands was affected in common as to quality or quantity (depending on which line of cases is followed) with their neighbours had no right to claim compensation for injurious affection in the absence of a taking.
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| 28. |
The end result of the application of principles from the law of public nuisance
to the carrying out of public works may be summarized as follows;
| a) |
A public work (with no takings) will cause general inconvenience in the neighbourhood;
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| b) |
A particular level or type of inconvenience common to all of the neighbours is not compensable in damages at common law as the tort of public nuisance limits claims for damages to persons more adversely or particularly affected than the others in community. A person in the latter situation may claim for damages for nuisance. All the other neighbors may initiate a prosecution only;
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| c) |
If a statute authorizes the work the authority is neither subject to prosecution nor a claim for damages by a person particularly adversely affected or otherwise. Unless the statute authorizes compensation, no such claim may be made;
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| d) |
If the statute authorizing the works or another statute applying to the works provides or is interpreted to provide a basis for a claim for compensation for injurious affection with no taking not all persons injuriously affected may claim - only those more injuriously affected than the neighborhood "average".
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| 29. |
The courts have quite properly taken the view that there are circumstances in which a landowner from whom land has not been taken may be more affected by loss in value of land than has, for instance, a person from whom land was expropriated. This conclusion has given rise to the development of the body of law dealing with injurious affection with no taking. As we shall see in following sections of this paper there is a reasonable conclusion to be drawn that compensation for injurious affection with no taking may never have been intended to be granted by the drafters of the U.K. Lands Clauses Consolidation Act (1845), and that that "head" of claim was created by the judiciary who seized on the wording of s. 68, in isolation from s. 63, and declared s. 68 not to be procedural but a section granting a substantive right to claim. Section 63 does not confer a right to claim for injurious affection in the absence of a taking. Section 68 on a fair reading may be found to be procedural - not conferring substantive rights. If it is agreed that "injurious affection" in definitional terms cannot exist without a taking then s. 68 could not be read as conferring substantive rights. The cases however indicate clearly how far the courts are prepared to go in appropriate circumstances (either societal - whether in general terms public or private rights are seen as being more important at any particular point in time, or relating to the particular case - if the facts cry out for compensation) to "create" a right to compensation for injurious affection where there is no taking if a public project results in devaluation of one or more neighbouring properties and the authority is not absolutely protected from claims, as in the case of downzoning, by statute.
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| 30. |
The courts have developed, and will impose the four-step test
(see Loiselle v. Canada, [1962] EXLAW 3)
in order to impose limits on the remedy of compensation for injurious
affection in the absence of a taking. The four conditions that must
be satisfied in order that compensation will be awarded when there
is statutory authority for the claiming of compensation for injurious
affection in the absence of a taking are as follows:
| a) |
the damage must result from an act rendered lawful by statutory powers of the person performing such act (ie. the statute must protect authorities from claims for damages for nuisance);
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| b) |
the damage must be such as would have been actionable under the common law but for the statutory powers (ie. there would have been a claim for damages in nuisance without the protection of the authority therefrom provided by the statute);
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| c) |
the damage must be an injury to the land itself and not a personal injury or an injury to business or trade;
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| d) |
the damage must be occasioned by the construction of the public work, not by its use.
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| 31. |
The best general conclusion to be drawn from the decisions and the applicable statutes seems to be as follows:
| a) |
There is no presumption in favour of compensation for "injurious affection" in the absence of a taking;
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| b) |
There must be a statutory foundation, such as that found in the Lands Clauses Consolidation Act (U.K.) and its Canadian lineal descendants (as are referred to by implication in Section 40 of the B.C. Expropriation Act) in order to found a claim for compensation for injurious affection in the absence of a taking;
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| c) |
When there is such a statutory foundation the four-step test must be satisfied by the claimant before compensation will be awarded;
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| d) |
The courts have shown a consistent pattern of attempting to find an avenue to provide compensation for injurious affection in the absence of a taking when the societal trend promotes private interests over public or when a particular situation appears to demand compensation, either by holding the statutory foundation to exist, or by determining that an expropriation has in fact occurred.
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| 32. |
There are two compelling competing arguments which must be weighed by both legislators and courts when dealing with the issue of compensation for injurious affection with no taking. The first is the inclination to close the door to such claims entirely by reason of the view that any disadvantage to individual landowners arising out of public works strikes a fair balance with the benefit expected to be derived from the public work in question and, further, allowing compensation for injurious affection when there is no taking has the inherent weakness that once the remedy is allowed, by way of statute or judicial interpretation, such claims may be viewed to become limitless and increase the cost of public projects inordinately. The second is that there may be situations in which a landowner would be treated unjustly if he were not able to claim compensation in a situation where his holding was significantly adversely affected by a project, although no land was taken from him. Legislatures and the courts historically have attempted to tread a fine line between those two competing, and apparently irreconcilable, views.
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