Economic Efficiency, Nuisance and Sewage: New Lessons from Attorney-General v Council of the Borough of Birmingham, 1858-1895

Leslie Rosenthal

No KERP 2004/08, Keele Economics Research Papers from Centre for Economic Research, Keele University

Abstract: This paper examines the post-litigation history of a celebrated and much-cited English nuisance case of 1858 concerning sewage pollution of the river Tame. This legal case is a classic citation purporting to illustrate the absence in English nuisance law of a ‘‘social benefit’’ defence for nuisance. As the court’s judgment in law found in favour of an individual landowner against the polluting city of Birmingham, population 250,000, property rights were manifestly awarded where benefits were lower. Coase’s Theorem arguments would lead to the expectation that post-litigation negotiations would ensue and evidence is presented that in this case such negotiations did occur, but broke down. The legal conflict stretched on over nearly 40 years, during which period the pollution was, in practice, allowed to continue until adequate sewage treatment techniques developed. The argument is made that the English court, in effect, by failing to enforce their decisions decisively, did take note of the calamitous social effects that would have followed an enforcement of the court’s orders.

Keywords: Nuisance Law; Coase’s Theorem; Public Health (search for similar items in EconPapers)
JEL-codes: I18 K11 N5 (search for similar items in EconPapers)
Pages: 39 pages
Date: 2004-09
New Economics Papers: this item is included in nep-his and nep-law
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Forthcoming in Journal of Legal Studies

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