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so that it can be seen to the naked eye, such as crane, car, person, rock etc., then the physical interference will be a trespass.31 When the thing crossing the boundary does not have this ‘dimensional’ characteristic, such as odour, fumes, light, sound waves etc., then the physical interference will be a nuisance.32

This extremely brief account of the torts of conversion, trespass, negligence, and nuisance demonstrates that, subject to the requisite mental states being satisfied, if a defendant physically interferes with a claimant’s chattel or land he will be held to have committed a tort. This tells us that A, an owner of thing, is owed a legal duty by B, C, D . . . etc., not to physically interfere with the thing deliberately or carelessly. It is this legal duty which is being described when A asserts that he has a ‘right to exclude’ others from his thing.

b) The ‘right to use’

The second often emphasized stick in the ‘bundle of rights’ is the ‘right to use’: Honoré called this right a ‘cardinal’33 feature of ownership.34 Whilst it is clear, as will be seen below, that an owner of a chattel or land does have a ‘right to use’, this right is of an entirely different nature to his ‘right to exclude’. We saw in the last section that an owner’s ‘right to exclude’ has the status of a ‘claim-right’ because it denotes a legal duty on others to behave in a certain way: A’s ‘right to exclude’ is a shorthand description of the legal duty imposed on B, C, D . . . etc not to physically interfere deliberately or carelessly with A’s chattel or land. In contrast, when an owner claims that he has a ‘right to use’ his thing, he is not normally asserting that others owe him a legal duty to behave in a certain way; rather, he is asserting that he himself is permitted to behave in a certain way, i.e. to use his chattel or his land. Put a little differently, when A claims that he has a ‘right to use’ his thing, he is asserting that he is under no legal duty to B, C, D . . . etc. not to use his thing and, in the absence of such a duty, his use is permitted. When an owner asserts a ‘right’ in this sense, the better word is ‘privilege’ or ‘liberty’, as Cave J. said in Allen v Flood:

it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun so long as he does not violate or infringe anyone’s rights in doing so, which is a very different thing from a right the violation or disturbance of which can be remedied or prevented by legal process.35

As Cave J. thus noted, an owner’s ‘right to use’ his thing, being no more than an assertion that his use is legally permitted, is more accurately described as a ‘liberty to use’.

‘Liberties to use’ can be readily observed in everyday life. We are all free to ride our bicycles, write with our pens, toss our coins, walk in our gardens . . . etc. However,

31	Merrill 1985, 28–9.	32 e.g. Rapier v London Tramways Co. 1893.
33	Honoré 1961, 116. As James Penner reminds us, the ‘incidents’ of ownership Honoré identifies

are a mixture of the genuinely legal, i.e. legal norms that actually go with ownership (e.g. the right to possess, the power to alienate), and the functional (e.g. the right to use, to manage, and to income, the ‘right to capital’). In view of this it is not clear whether Honoré himself would dispute our central claim that there is no genuinely legal norm which can be identified as a right to use.

34 See also Clarke 2005, 241–2. 35 Allen v Flood 1898, 29, emphasis added.

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such liberties are infrequently the subject of judicial notice, as they come to the fore only when someone challenges an owner’s specific use of his chattel or land.36 An example of this is the case of Bradford v Pickles.37 The defendant acquired title to a parcel of land overlooking the city of Bradford and proceeded to sink a borehole into a natural reservoir under his land. The claimants sought an injunction to prevent the defendant taking water from this reservoir, as it would have the effect of drying up natural springs used by the city. Further, it was alleged that the defendant’s only motive in sinking this borehole was to force the claimants to purchase the land at an inflated price. The House of Lords, rejecting the claim, held that the claimants could not challenge the defendant’s use of his land, Lord Halsbury saying, ‘If it was a lawful act, however ill the motive might be, [the defendant] had a right to do it.’38 The defendant’s ‘right’ to take water from his land, mentioned by Lord Halsbury in this sentence, is a ‘liberty’, not a ‘claim-right’. The reason for this is that the defendant’s ‘right’ to take water from his land does not denote a legal duty on others to behave in a certain way (what could be the content of such a duty?). Rather, the ‘right’ denotes the fact that the defendant himself was under no legal duty to the claimant (or anyone else) not to take water from his land and, in the absence of such a duty, that specific use was permitted.

An owner’s liberty to use his chattel or land is obviously important as there is not much point in owning something that you are not permitted to use. However, the value of one’s liberty depends largely upon whether or not the liberty is accompanied by claim-rights. The best example of this from the case law is Allen v Flood where the claimant, a shipwright, had been employed on a rolling contract by a shipowner. The defendant, a union representative, threatened to call a strike if the shipowner continued to renew the claimant’s contract, at which point the shipowner stopped employing the claimant. The court held that although the defendant had deprived the claimant of a clear liberty (the claimant’s liberty to enter a contract of service with the shipowner) the defendant had not committed a tort in so doing because, as a majority of the House of Lords found, the defendant was under no legal duty to the claimant not to behave in this way. One’s liberty to do an act, therefore, is only protected if the law is also willing to impose duties on others.39 Returning to property rights, the important question is whether an owner’s ‘liberty to use’ his chattel or land is protected by the imposition of a duty on others that extends beyond the basic duty not to physically interfere, deliberately or carelessly, with A’s thing.

It is certainly true that an owner’s ‘liberty to use’ is indirectly protected by the basic duty of non-interference. If A, for example, wishes to build a house on his land, he would find it difficult to exercise this liberty if third parties, B, C, D . . . , could walk across or occupy his land with impunity. The fact that B, C, D . . . are under a legal duty not to physically interfere with the land leaves A free to pursue his building plans unhindered. However, this protection of A’s liberty is achieved

36 Harris 2004, 434.

37 See also Tapling v Jones 1865.

38Bradford v Pickles 1895, 594–5.

39Harris refers to these as ‘fencing’ duties, protecting a sphere of permitted action: 2004, 434.

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indirectly, in the sense that the duty upon B, C, D . . . not to physically interfere with A’s land does not correlate with A’s liberty to use his land.40 To give an example, in the well-known case of Spartan Steel & Alloys Ltd v Martin & Co. Ltd the defendant carelessly damaged a power cable whilst carrying out road maintenance and cut off power to the claimant’s factory. The power loss prevented the claimant from processing a number of its metal ingots and offering them for sale. The defendant, therefore, had deprived the claimant of its ‘liberty to use’ its chattels. Despite this it was held that the defendant committed no tort because, by merely preventing electricity from coming into the factory, it had not physically interfered with the ingots.

Spartan Steel is an illustration of the fact that it is possible to deprive an owner of his liberty to use his thing without breaching a duty not to physically interfere with the thing. It is in this sense that an owner’s ‘liberty to use’ his thing does not correlate with the duty imposed on others not to physically interfere with it. The only way in which this liberty can be protected directly, therefore, is if the law were to impose a correlative duty on others, i.e. a duty not to impair an owner’s ability to use his chattel or his land. The next question is whether there is any evidence that such a duty has been recognized. This is an important question as it informs us of the status of an owner’s ‘right to use’ his thing. So far we have seen that this right describes the owner’s permission, or ‘liberty’, to use his thing. What we are essentially asking now is whether it also describes a legal duty on others, i.e. a duty not to impair the owner’s ability to use his thing. We will consider the evidence for such a duty in cases involving chattels and land separately.

i. Chattels

Whilst it is clear that an owner of a chattel, A, is owed a legal duty by B, C, D . . . not to physically interfere with A’s chattel, the question posed in this section is whether B, C, D . . . also owe A an additional duty, namely a duty not to impair A’s ability to use his chattel. There is some slight evidence in the law of torts for the recognition of such a duty. One case is the conversion claim in Douglas Valley Finance Co. Ltd v S Hughes (Hirers) Ltd where the claimant owned two lorries which had valuable licences that permitted them to be used for commercial haulage. The defendant wanted these licences for its own vehicles and, acting fraudulently, persuaded the licensing authority to transfer the licences to its vehicles. Finding the defendant liable, McNair J. said that the result of the defendant’s conduct was that the claimant’s lorries ‘had lost the function of being capable of use for their only designed and contemplated purpose, just as much as if the wheels of the lorries had been permanently removed’.41 What is interesting about this case is that the defendant could not have been in breach of its duty not to physically interfere with the claimant’s lorries because no physical contact was ever made with them. The defendant’s liability in conversion, therefore, suggests that it was under an additional duty to the claimant, namely a duty not to impair the

40 Harris 2004, 434 and Hohfeld 1919, 77.

41 Douglas Valley Finance Co. Ltd v S Hughes (Hirers) Ltd 1969, 754.

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claimant’s ability to use its lorries. Another possible line of cases that may support the recognition of this duty can be found under the action called ‘slander of title’. One example is the case of Western Counties Manure Co. v The Lawes Chemical Manure Co.42 The claimant had produced a large quantity of manure that it was offering for sale and the defendant published a notice stating (falsely) that the claimant’s manure was of a very low quality. This notice was designed, as Pollock B said, ‘to injure the plaintiffs in their business’,43 and the defendant was found liable. Again, the defendant had not physically interfered with the claimant’s manure in this case, but had merely damaged the claimant’s prospects of selling it. It may be possible to analyse this case on the basis that the defendant was under a further duty to the claimant not to impair the claimant’s ability to use its manure.

There is much more substantial evidence, however, for the contrary view that there is no legal duty not to impair an owner’s ability to use his chattel. In the two recent cases of Club Cruise Entertainment and Travelling Services Europe BV v Department for Transport (The Van Gogh)44 and D Pride & Partners (a firm) v Institute for Animal Health the courts refused to recognize such a duty. In the first case the claimant was an owner of a ship that was scheduled to cruise from Harwich to Norway but, due to an outbreak of norovirus on the ship, the defendant issued a detention notice to the claimant under the Merchant Shipping Act 1995.45 It later transpired that this had been done improperly, there being no statutory basis for the detention notice, and the claimant sued in conversion. The court held that the defendant’s conduct, which consisted of no more than handing a sheet of paper to the claimant with the details of the detention notice on it, did not amount to a tort. In a telling passage Flaux J. said that ‘if there had been actual physical restraint of the ship by chaining it to the quayside, that would have constituted the tort of trespass to goods’.46 In other words, had there been a physical interference with the claimant’s ship, this would have amounted to a tort, but merely impairing use was not actionable. Whilst the defendant, therefore, was under a duty not to physically interfere with the ship, it was not under a further duty not to impair the claimant’s ability to use it. The second case, D Pride, reached a similar conclusion. The defendant carelessly caused an outbreak of the foot and mouth disease close to the claimant’s land and whilst this did not infect any of the claimant’s pigs, a quarantine zone was imposed which prevented the claimant from sending its pigs to the abattoir. Tugendhat J. held that if physical damage could be shown to the pigs then that would have been actionable, but merely impairing the claimant’s ability to use the pigs did not give rise to any liability in tort law.47 The defendant was not under a legal duty to the claimant not to impair the claimant’s ability to use its pigs.

42See also De Beers Abrasive Products Ltd v International General Electric of New York Ltd 1975.

43De Beers Abrasive Products Ltd v International General Electric of New York Ltd 1975, 223.

44See also Mogul Steamship Co. Ltd v McGregor, Gow & Co. 1892 and Perre v Apand Pty Ltd 1999.

45s. 95.

46Club Cruise Entertainment and Travelling Services Europe BV v Department for Transport (The Van Gogh) 2008, [50].

47D Pride & Partners (a firm) v Institute for Animal Health 2009, [83].