2.2 Determining if B’s right counts as a property right

So far we have seen that in cases where A has an undoubted property right, A is owed a duty by the rest of the world not to physically interfere with A’s thing. This duty is the key difference between A’s position and that of X, who does not have a property right: X, unlike A, is not owed a duty by the rest of the world not to interfere with A’s thing. This duty, therefore, which correlates with A’s ‘right to exclude’, is how we define A’s property right. In this section, we will consider how this concept of a property right may assist in determining if B’s right counts as a property right.

a) Physical things

It was argued in Section 2.1 that A’s holding of an undoubted property right, such as a freehold of land or ownership of a chattel, does not entail the rest of the world’s being under a duty to A not to interfere with particular uses A may wish to make of A’s thing. In that sense, A’s potential use of the thing is not crucial when distinguishing the position of A from that of X, a party without a property right. The converse point can be seen when considering the Court of Appeal’s decision in

Jonathan Yearworth & Ors v North Bristol NHS Trust. The case concerned the defendant’s admittedly careless storage of semen samples provided by claimants prior to undergoing treatment that might affect their fertility, on the basis that a hospital, for which the defendant was responsible, would store those samples so as to permit possible future use of the sperm. The question was whether the claimants had any cause of action as a result of the defendant’s carelessness. The storage of the semen was regulated by the Human Fertilisation and Embryology Act 1990. As noted by the court, the scheme of the Act is ‘to confine the provision of human reproductive treatment services to persons licensed under the Act’.60 As the claimants, unlike the defendant, held no such licence there was no positive use that they could make of the stored material: for example, no claimant could have insisted on the return of his sample, nor on storing it in his own freezer. Indeed, the Act prevented any claimant from directing the hospital to make a particular use of the sample: for example, the court noted that no claimant had the power to insist that sperm from the sample be implanted into the uterus of his willing wife or partner.61 As a result, the defendant argued that no claimant could be seen as the owner of any sample and, as a result, the defendant’s carelessness was not a breach of the duty not to carelessly interfere with another’s property. The court did refer62 to Honoré’s elaboration of the incidents of ownership, emphasizing in particular the ‘right (liberty) to use at one’s discretion’;63 yet the relevant legislative provisions

60Jonathan Yearworth & Ors v North Bristol NHS Trust 2009, [42].

61Jonathan Yearworth & Ors v North Bristol NHS Trust 2009, [43]. The men could have made such a request, but the hospital would then have had a statutory duty to consider a range of relevant factors, including the welfare of the prospective child, before deciding whether to accede to such a request.

62Jonathan Yearworth & Ors v North Bristol NHS Trust 2009, [28].

63Honoré 1961, 116.

made clear that the claimants did not have a set of open-ended liberties to use the material. Due to the special nature of the physical thing in question, the ‘bundle of rights’ that may be held in a standard case of ownership of a physical thing was clearly absent.

The claimants were, however, successful. Whilst it was true that the legislation ‘effected a compulsory interposition of professional judgment between the wishes of the men and the use of the sperm’, the court also held that ‘the absence of their ability to “direct” its use does not in our view derogate from their ownership.’64 A crucial factor in this conclusion was that ‘the Act assiduously preserves the ability of the men to direct that the sperm be not used in a certain way: their negative control over its use remains absolute.’65 The legislation specified, for example, that, in the absence of consent from a specific claimant, the defendant could not store his material, nor use it for the treatment of anyone other than the claimant. It seems that these limits on the defendant’s ability to use the sperm did not give rise to a direct statutory duty to the claimant: the claim-right recognized by the court was not deduced directly from the terms of the legislation. Rather, the court reasoned that each claimant had a common law claim-right that the defendant not carelessly interfere with a physical thing (the sample) because the regulatory scheme laid down by the statute left the claimant in a position sufficiently analogous to that of A, a party with an undoubted property right, such as ownership of a car. In reaching that conclusion, the crucial feature of A’s position was not seen to be A’s liberty to use the thing at A’s discretion—after all, the claimants had no such liberty in Yearworth—rather, the crucial feature was seen to be the ‘negative control’ that flows from the fact that the rest of the world has a prima facie duty to A not to deliberately or carelessly interfere with A’s thing.

Yearworth is an unusual case as it was plausible for the defendant to argue that a physical thing was not capable of being the subject matter of a property right. In general, of course, any discrete physical thing may be the subject of ownership: in other words, the rest of the world may come under a prima facie duty to A not to deliberately or carelessly interfere with that thing. Where physical things are concerned, then, the question of whether or not B’s right counts as a property right is more likely to arise in a case where B claims a right that differs from ownership. This chapter is not the place for a full discussion of the numerus clausus principle.66 It is, however, worth noting that the existence and operation of the principle is more obviously consistent with an approach that focuses not on allocating and protecting particular uses of property, but rather with one that emphasizes the duties imposed by property rights on the rest of the world. For example, in Hill v Tupper, A, a company, held an estate in the Basingstoke Canal. A made a contractual promise to B that he would have the exclusive right to put pleasure boats on the canal, and to hire out those boats. X, the landlord of an inn

64Jonathan Yearworth & Ors v North Bristol NHS Trust 2009, [45].

65Jonathan Yearworth & Ors v North Bristol NHS Trust 2009, [45].

66See e.g. Rudden 1987 and Merrill and Smith 2000, which sparked an ongoing academic interest in the principle. For a recent survey see e.g. Davidson 2008. See too McFarlane 2011.

adjoining the canal, then started to compete with B by also hiring out pleasure boats on the canal. B claimed that X had thereby committed a wrong against B: X had ‘wrongfully and unjustly disturbed . . . [B] in his possession, use and enjoyment’ of the ‘right and liberty’ granted to B by A. The Exchequer Chamber rejected B’s claim. It was held that, whilst the contract between A and B gave B a right against A, it gave B ‘no right of action in his own name for any infringement of the supposed exclusive right’.67 So, whilst X had interfered with A’s right to exclusive possession of the canal, and had thus committed a wrong against A, X had committed no wrong against B.

In Hill, then, A’s dealings with B did not amount to A’s having transferred one of his proprietary bundle of rights, a ‘right to put pleasure boats on the canal’, to

B.After all, A had no such claim-right; A simply had a liberty, as against X, to use the canal in that way. And B, both before and after his dealing with A, had that same liberty against X. It could be claimed that A had a claim-right to hire out pleasure boats on the canal; yet, as we saw in Section 1 above, it is not possible for anyone to have a claim-right that refers only to his or her own behaviour. A could then assert a claim right that no one interfere with his ability to use the canal for the hiring out of pleasure boats. As we saw in Section 2.1, however, no such claim-right exists: A’s protection for such activities is indirect, as it comes from X’s general duty not to physically interfere, deliberately or carelessly, with A’s land. For example, if A itself had intended to start up a business hiring out pleasure boats, and X had interfered with this by buying or hiring all the available pleasure boats in the area, X would commit no wrong against A. It would therefore be very difficult, and one might reasonably think impossible, for A to give B a claim-right against X that A itself did not hold.

It may be objected that this analysis proves too much: it would suggest that if A has a freehold of land, A should never be able to confer a lesser property right on B. Of course, as recognized by the court in Hill, this is not the case: the difficulty for B was not that he was claiming a lesser property right, but rather that, due to its content, his right was not on the recognized list of such rights.68 The analysis here does not seek to deny the existence of this list; rather, it suggests a particular way of understanding what occurs when such a lesser property right is created. Consider the effect on X, a stranger, in a case where A grants B a legal easement, such as a right of way across A’s land.69 There is no transfer of a particular proprietary stick from A to B; both before and after A’s grant, X, along with the rest of the world, is under a prima facie duty to A not to physically interfere, deliberately or carelessly, with A’s land. As a result of the grant, X does come under a new duty: a duty to B. We need to be precise in describing this duty: it is very commonly said that X’s duty is not to interfere with B’s easement, but this formulation is either pointless or misleading. It is pointless if it is an attempt to describe B’s right by referring to the

67Hill v Tupper 1863, 127. See McFarlane 2013.

68See Hill v Tupper 1863 per Pollock CB at 127–8.

69For a Hohfeldian analysis of the effect of the grant of an easement, see Hohfeld 1917a and Smith 2004, 1003 ff.

right itself: how do we know what it means to ‘interfere with an easement’ if we have not yet defined the easement? It is misleading if it means that X has a duty not to interfere with B’s exercise of his right of way: if, for example, X blockades a local petrol station and so prevents B, who has no petrol for his car, from exercising a vehicular right of way, X commits no wrong against B.

In his influential 1987 discussion of the numerus clausus principle, Rudden refers to the ‘cloning’ of claims that occurs where a lesser property right is created: this is probably the best way to understand the effect on X of A’s grant of an easement to B. Whereas X previously had a duty to A not to physically interfere, deliberately or carelessly, with A’s land, X now owes a similar (but not identical) duty to B. X’s duty to B is more limited than X’s duty to A: the interference with A’s land will only be a wrong against B if it interferes with the part of the land over which the easement is exercised, and in such a way as to impede B’s right of way. Crucially, for our purposes, the duty to B cannot be more extensive than the previous duty to A. So, whilst we do need to bring in reference to the use of land when considering the easement, it is not the case of A creating a lesser use right from A’s bundle of rights to use the land. Rather, it is the case of A’s imposing a new duty on X, owed to B, with the content of that duty modelled on X’s general duty to A, but reduced by the limit placed on B’s use of the land.70

On one view, the numerus clausus principle can be seen simply as a product of the general rule that A, by means of his unilateral conduct or his dealings with B, cannot impose a new duty on X.71 Of course, in certain situations (such as A’s taking possession of a physical thing), exceptions are made to that rule. In such cases, it seems that an assessment of B’s liberty to use A’s land (or, in the case of restrictive covenants, B’s claim-right that A not make a particular use of A’s land) must be undertaken, to determine if that liberty or claim-right is of a kind that is sufficiently important to warrant the imposition of an additional duty (or, in the case of a restrictive covenant, a liability) on X, now owed to B.72 This attention is required because the creation of a lesser property right does not redistribute existing rights in a zero sum game, taking from A and giving to B, but rather creates new duties on X. These duties exist in addition to the duties owed to A: in this way, A’s property right retains its unity even as lesser property rights are created.73 In one way, however, the general approach of property law is reversed: a specific type of use (or non-use) of land is evaluated and its significance assessed, as a decision is made (sometimes by the courts,74 more usually by the legislature) as to whether the specific use (or non-use) allocated to B is of sufficient importance to warrant the

70It is of course possible for the agreement between A and B to impose additional contractual duties on A alone not to interfere with B’s use of the easement. The mere grant of an easement from A to B does not, however, impose such additional duties on A.

71See McFarlane 2011.

72For a discussion of this point in relation to restrictive covenants see McFarlane 2012.

73This point may be captured by Honoré’s analysis of the ‘residuarity’ of ownership: see Honoré 1961, 120.

74So, for example, in the period following the decision in Tulk v Moxhay 1848, the courts carefully defined the content required of A’s promise to B before such promise could be capable of binding not just A but also A’s successor in title: the process is discussed in detail in McFarlane 2012.