Week 14 Seminar Work Notes

Idea of Property; Notes on Rights of Passage Chapters 6-7 by Nicholas Blomley Common law courts draw from a form of judicial pedestrianism that characterizes the sidewalk as a zone of circulation. People and things that are not engaged in circulation are tolerated but so long as they don't conflict with what the Canadian courts term the essential function of the place. An obstruction to a highway 'occurs when t is rendered impassable, or more difficult to pass along it by reason of some physical obstacle'. Obstruction is self-sufficient (evidence that a particular person was actually obstructed need not be necessary to prove an offence.) In English common law, the use of the sidewalk for business purposes, such as the loading or unloading of goods, in such a way as to interfere with the right to pass and re-pass, was deemed a nuisance. Authorities do not have any power to grant exclusive uses of the highway to private individuals, but only the power to regulate the streets in the service of the community. Questions to ask: How about when there are benches on the side-walk? The bench may be an intrusion and may interfere with the path, however the person sitting on it may be seen to be doing so as well. They are also, after-all doing more than just circulating, no? What about when advertisements are placed outside of stores e.g 50% off signs? Is that still intrusion? Even if it is placed right in front of the store? Why do we see it happen then? Why is the common law regarding this issue so vague? Is there a certain test that is carried out to show when something or someone is obstructing the highway? It was said earlier that there be need for no proof or example of one specific person whose path was obstructed, the highway just needs to be obstructed, but what exactly would be defined as obstruction? Uses of sidewalk other than those associated with passage are seen as conditional privileges rather full-throated rights. A case from the mid 1970s concerning the protests of the Islington Tenans' Campagin in London against the gentrification-induced displacement of working class renters from Bransbury and areas of South Islington. For 3 consecutive days in March 197, picketers gathered on the side-walk in front of Prebble's office, holding placards and distributing leaflets. It was conducted peacefully and in an orderly fashion, and was strung out along the length of the side-walk, not across it. There was room on either side of the picket line and between the individual picketers, for the public to pass. Nevertheless the court deemed the picket a public nuisance and upheld the application for an injunction by the realtors. Freedom of expression was never one of the attributes of highway dedication. (page 84)