must be examined 4. Aemulatio vicini in the case-law It is quite clear looking at the early cases that the phrase'it aemulationem vicini was in fairly frequent use, as a means or establishing a form of private law proportionality in disputes between individuals. The first appearance of the term is commonly attributed to a line of cases concerning fairs or markets in the early seventeenth century. But the largest number of references to aemulatio vicini i to be found in neighbour law- typically water disputes in the rural setting and disputes over light in the urban setting. The Property section of Morisons Dictionarys contains a number of cases which invoke this principle, often citing Ius Commune writers as authority. - In aemulatio vicini is given passing consideration only and malice is not in issue: for example, a neighbour ob jects to a particular type of land use, and the defender responds to the effect that an owner may do what he likes with his property except where he acts in aemlationem vicini, or the pursuer argues that for the defender to oppose a proposed operation is to act in aemlationem vicini. Such cases confirm that the existence of the doctrine was uncontentious, but they do little to assist the understanding of its scope. In the few cases where malice is disputed, there is scarcely any more analysis, although there is suggestion that malice might extend to personal avarice as well as spite towards ones neighb our The indications are, therefore, that the doctrine had not been fully related or systematised in the Institutional writers or in the contemporaneous case-law, but that is perhaps not so surprising. althougI the doctrine may have existed in the jurisprudence and doctrine of the Civil law systems of the eighteenth century, one could hardly call it systematised there at that time. 47 and indeed in france it has to th day not been codified. Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law. Indeed, moving forward to the period preceding Mayor of Bradford, the Scots cases indicate only a marginal role for malice, apart from in procedural applications the malicious use of diligence, wrongous arrestment upon the dependence of a court action, and malicious prosecution -where malice is approached rather differently. While aemulatio vicini was pled relatively frequently during that period, such pleadings were seldom successful. One example demonstrating its
must be examined. 4. Aemulatio vicini in the case-law It is quite clear looking at the early cases that the phrase 'in aemulationem vicini' was in fairly frequent use, as a means of establishing a form of private law proportionality in disputes between individuals. The first appearance of the term is commonly attributed to a line of cases concerning fairs or markets in the early seventeenth century.(42) But the largest number of references to aemulatio vicini is to be found in neighbour law - typically water disputes in the rural setting and disputes over light in the urban setting. The 'Property' section of Morison's Dictionary (43) contains a number of cases which invoke this principle, often citing Ius Commune writers as authority.(44) In most, aemulatio vicini is given passing consideration only and malice is not in issue: for example, a neighbour objects to a particular type of land use, and the defender responds to the effect that an owner may do what he likes with his property except where he acts in aemulationem vicini, (45) or the pursuer argues that for the defender to oppose a proposed operation is to act in aemulationem vicini. Such cases confirm that the existence of the doctrine was uncontentious, but they do little to assist the understanding of its scope. In the few cases where malice is disputed, there is scarcely any more analysis, although there is suggestion that malice might extend to personal avarice as well as spite towards one's neighbour.(46) The indications are, therefore, that the doctrine had not been 'fully related or systematised' in the Institutional writers or in the contemporaneous case-law, but that is perhaps not so surprising. Although the doctrine may have existed in the jurisprudence and doctrine of the Civil Law systems of the eighteenth century, one could hardly call it systematised there at that time,(47) and indeed in France it has to this day not been codified. Even in the Civil Law systems where it has now been translated to modern codified provisions, these are typically so bland as to be meaningless without reference to case-law. Indeed, moving forward to the period preceding Mayor of Bradford, the Scots cases indicate only a marginal role for malice, apart from in procedural applications - the malicious use of diligence, wrongous arrestment upon the dependence of a court action, and malicious prosecution - where malice is approached rather differently. While aemulatio vicini was pled relatively frequently during that period, such pleadings were seldom successful. One example demonstrating its
acceptance in the field of neighbour law is found in Campbell v Muir, where the court held that fishing in such a way as to obstruct the fishing of an immediate neighbour could be actionable as aemulatio vicini.9 However, in Murdoch v Wallace, for example, in which a neighbour had objected to a proprietor -or his tenant - diverting water from a stream the existence of the aemulatio vicini rule was conceded, but Lord Justice Clerk moncreiff suggested that as long as a proprietor is carrying out operations on his own land, 'substantial damage to the neighbour must be made out before the law will interfere. Beyond neighbour law, il the areas inhabited by abuse of rights in other jurisdictions, there is little indication of a flourishing doctrine. For example, in Craig v Millar, - a dispute between a tenant who operated a lodging house and his landlord who set up a rival lodging house next door, the tenant brought an action against the landlord on the grounds that he was acting in violation of the good faith of the contract. Although abuse might have been identified in a Civilian jurisdiction, the Scots court took strong l, against recognising any restraint inconsistent with the free exercise of proprietary rights. In other words, while Lord Watson's observations in Bradford v Pickle clearly underplayed the significance of the doctrine, one cannot take serious issue with his reference to aemulatio vicini in the passage in Mr. Bell's Principles(sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. Aemulatio vicini, while not to be discounted, was a marginal doctrine, and the complex balancing of interests required for this private law form of proportionality wer highly dependent on context. This is of the very nature of a doctrine addressing abuse of rights. Indeed Bells assessment approximates to the observations which the English comparatist Gutteridge was to make of abuse of rights in the Civil law a decade or two later It is considered to be undesirable to specify [the rules] with precision for fear lest they should come to be recognised as embody ing a principle of genera application. The concept of abuse is thus purposely left vague, and the judges are trus ted to apply it only when the circums tances are such as to show that a right is being employed deliberately with a disregard for the interests of other persons ( ile the status of aemlatio vicini remained uncertain for several ecades, it is now accepted by Scots lawyers that Lord Watsons denial of the doctrine was far too widely stated, and this qualification on a landowner's rights is clearly recognised. 52 Aemulatio vicini was restored to the textbooks a few years after the Smith inaugural lecture
acceptance in the field of neighbour law is found in Campbell v Muir, (48) where the court held that fishing in such a way as to obstruct the fishing of an immediate neighbour could be actionable as aemulatio vicini. (49) However, in Murdoch v Wallace, (50) for example, in which a neighbour had objected to a proprietor - or his tenant - diverting water from a stream, the existence of the aemulatio vicini rule was conceded, but Lord Justice Clerk Moncreiff suggested that as long as a proprietor is carrying out operations on his own land, 'substantial damage' to the neighbour must be made out before the law will interfere.(51) Beyond neighbour law, in the areas inhabited by abuse of rights in other jurisdictions, there is little indication of a flourishing doctrine. For example, in Craig v Millar, (52) a dispute between a tenant who operated a lodging house and his landlord who set up a rival lodging house next door, the tenant brought an action against the landlord on the grounds that he was acting in violation of the good faith of the contract. Although abuse might have been identified in a Civilian jurisdiction, the Scots court took strongly against recognising any restraint 'inconsistent with the free exercise of proprietary rights'.(53) In other words, while Lord Watson's observations in Bradford v Pickles clearly underplayed the significance of the doctrine, one cannot take serious issue with his reference to aemulatio vicini in the 'passage in Mr. Bell's Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded'.(54) Aemulatio vicini, while not to be discounted, was a marginal doctrine, and the complex balancing of interests required for this private law form of proportionality were highly dependent on context. This is of the very nature of a doctrine addressing abuse of rights. Indeed Bell's assessment approximates to the observations which the English comparatist Gutteridge was to make of abuse of rights in the Civil Law a decade or two later: It is considered to be undesirable to specify [the rules] with precision for fear lest they should come to be recognised as embodying a principle of general application. The concept of abuse is thus purposely left vague, and the judges are trusted to apply it only when the circumstances are such as to show that a right is being employed deliberately with a disregard for the interests of other persons.(55) While the status of aemulatio vicini remained uncertain for several decades, it is now accepted by Scots lawyers that Lord Watson's denial of the doctrine was 'far too widely stated',(56) and this qualification on a landowner's rights is clearly recognised.(57) Aemulatio vicini was restored to the textbooks a few years after the Smith inaugural lecture