The Mayor, Aldermen and Burgesses of the Borough of Bradford v Pickles (1895)

This is the leading authority for the rule that a bad motive does not make a lawful act unlawful. Pickles did something every landowner may lawfully do — deal with water percolating under his own land — and did it, the courts accepted, to force Bradford Corporation to buy him out. The House of Lords held that his motive was irrelevant. Where there is no legal right in the plaintiff that has been infringed, the loss is damnum sine injuria (damage without legal injury), and malice cannot supply the missing injury.

Lord Macnaghten's line is the one to learn: "It is the act, not the motive for the act, that must be regarded."

For some forty years the Corporation of Bradford had supplied the town with water under an Act of Parliament of 1854, having taken over the undertaking of the Bradford Waterworks Company. Its chief source was a cluster of springs called the Many Wells, on Trooper (Many Wells) Farm, which the company had bought.

Above the springs lay land belonging to Edward Pickles. Owing to the lie of the ground and the strata, his land formed "a sort of gathering-room or reservoir for subterranean water", and the water escaped only through the Many Wells Springs. The water was percolating water — "not shewn to be water flowing in any defined stream".

Within his own land Pickles began making a tunnel or drift which apparently would pierce one of the faults holding the water in, so that it would run off in another direction and not reach the Corporation's springs. He claimed he wanted to unwater beds of stone he could work at a profit. The courts found otherwise: in Lord Macnaghten's words, "it may be taken that his real object was to shew that he was master of the situation, and to force the corporation to buy him out at a price satisfactory to himself."

The Corporation sued for an injunction. North J granted it; the Court of Appeal (Lord Herschell, Lindley LJ and A.L. Smith LJ) reversed. The Corporation appealed to the House of Lords.

1. Apart from statute, did the Corporation have a right to the flow of percolating water, so that Pickles' interference was a legal wrong?
2. Did Pickles' malicious motive make his otherwise lawful act actionable?
3. Did s. 49 of the 1854 Act (repeating s. 234 of the 1842 Act) prohibit what he was doing?

The appeal was dismissed with costs. Pickles could not be restrained.

No right to percolating water

Following Chasemore v Richards, a landowner may abstract water percolating in undefined channels under his land, "whatever his object or purpose might be". Lord Halsbury LC put the burden plainly: "it is necessary for the plaintiffs to establish that they have a right to the flow of water, and that the defendant has no right to do what he is doing." Neither could be established. Lord Watson agreed that the respondent "has a legal right to divert or impound the water percolating beneath the surface of his land".

Motive is irrelevant

Lord Halsbury LC: "This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it." He added: "Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant." He saw no reason why Pickles "should not insist on their purchasing his interest from which this trading company desires to make profit."

Lord Watson, rejecting the Roman-law and Scots doctrine of acts in aemulationem vicini (acts done to spite a neighbour) as part of English law, concluded: "No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious."

Lord Ashbourne: "If his motives were the most generous and philanthropic in the world, they would not avail him when his actions were illegal. If his motives are selfish and mercenary, that is no reason why his rights should be confiscated when his actions are legal."

Lord Macnaghten: Pickles "may be churlish, selfish, and grasping. His conduct may seem shocking to a moral philosopher. But where is the malice?" And: "the real answer to the claim of the corporation is that in such a case motives are immaterial. It is the act, not the motive for the act, that must be regarded. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element."

The statute did not help

The Lords read the protective section as guarding only water the company had acquired, not as silently confiscating a neighbour's rights. Lord Watson thought it "exceedingly improbable that the Legislature should have intended to deprive a landowner of part of his property for the benefit of a commercial company without any provision for compensating him for his loss." Lord Halsbury LC summed it up: "what is prohibited is taking what belongs to the company, and what is not prohibited is taking what does not belong to the company." Lord Macnaghten held that "the waters of the said springs" meant "not the waters which supply the springs, but the waters which the springs supply."

An act which is lawful in itself — here, a landowner's abstraction or diversion of water percolating under his own land in undefined channels — does not become actionable because it is done with a malicious or improper motive. Where the plaintiff has no legal right that has been infringed, the damage is damnum sine injuria, and the defendant's motive, however reprehensible, cannot supply the element of legal injury.

• Direct question: "Malice is irrelevant in the law of torts." Discuss. Use Bradford v Pickles as the core authority, with the Halsbury and Macnaghten passages. Then note the limits the Lords themselves drew (nuisance).
• Maxim question: Explain damnum sine injuria with illustrations. Bradford v Pickles is the model illustration alongside the Gloucester Grammar School Case: real loss to the plaintiff, but no legal right infringed, so no action. Contrast injuria sine damno (Ashby v White).
• Problem question: a landowner drains water under his land solely to force a neighbouring bottling plant to buy his plot. Apply Bradford v Pickles — no action, however spiteful the motive, unless the plaintiff can show a legal right to the water.
• Contrast: in Lumley v Gye the defendant's intention mattered because he procured an unlawful act (a breach of contract); in Bradford v Pickles the act itself was lawful, so intention could not make it wrongful.