Property Outline – Fall 2013
I.
II.
WHAT IS PROPERTY
Property is a collection of rights (over things) enforceable against others. The
term property signifies a set of relationships among people that concern
claims to tangible and intangible items.
CLASSIFICATION OF PROPERTY
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III.
Real Property
Rights in relation to land
o Corporeal
Those interests capable of being held in possession: freehold
estates
o Incorporeal
Non-possessory in nature
Personal Property
Things other than land
o Chattels Personal
 Choses in Action
Intangibles
 Choses in Possession
Tangibles
o Chattels Real
 Leases
Unique Interests
o Aboriginal Title
o Other
THE DIMENSIONS OF LAND
a) Air Space and Subterranean Areas
i. Airspace
 Maxim
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ii.
Whoever owns land owns all land above it
Maxim holds true. Ownership of a tract of land also confers
rights in the airspace above the surface, with no fixed upper
limit (Kelsen v. Imperial Tobacco)
Limit on maxim: standard based on ordinary use, an
intrusion must not interfere with actual or potential use and
enjoyment (Bernstein v. Sky Views and General)
No one can “own” airspace, is it public (The Queen in Right of
Manitoba v. Air Canada)
Injunctions can be made even if there is no interference with
the enjoyment of the land, and it is not presently being used
(Lewvest v. Scotia Towers)
Nuisance
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Private nuisance
Interference of an occupier’s use and enjoyment of land
Public nuisance
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iii.
Below the surface
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b) Fixtures
Interference with public at large in exercise of rights
common to all
Action in nuisance can be brought if it can be proven that
there has been an unreasonable interference with the
enjoyment of the plaintiff’s land (Attorney General of
Manitoba v. Campbell)
Owner of land also has absolute subsurface rights (Edwards
v. Sims)
A chattel that becomes sufficiently attached to land may be
transformed into a “fixture”, thereby forming part of the realty
i.
Tests
a. The greater absorbs the smaller
b. Can it have a separate existence in a useful sense
c. Can it be taken apart without damage
ii.
Annexation
 In order to determine whether something is a fixture look at
the degree and the object of annexation
o Degree: How well fixed is it?
o Object: Why was it affixed? To enhance the land or for
the better use of the chattel as a chattel?
 Things attached to land that are easy to remove and don’t
have permanency, and that for the better use of the chattel as
a chattel are not fixtures (Re Davis)
iii.
The Fixtures Doctrine
1. Objective Test
 Not attached other than by own weightchattel
 If attached even slightlyfixture (unless appreciable
damage would result from it’s removal)
 Can refute objective test by looking at annexation
2. Annexation
 Degree of annexation
 Object of annexation
 Object of annexation given more weight than degree of
annexation (Recreation v. Canada Camdex Investments)
iv.
Contracts
 Whether or not a chattel becomes a fixture cannot be
conclusively controlled by contract
 An agreement that provides that a chattel “shall not be
attachment or otherwise be deemed a fixture” will not
resolve the issue of characterization (Diamond Neon v.
Toronto Dominion Realty)
v.
Items that are not attached
 Items not physically attached will sometimes be treated as
fixtures (L&R v. Nuform)
vi.
Ambiguity over object of annexation
 As a general matter when ambiguity over the object of
annexation arises because of the existence of dual functions
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c) Water
i.
ii.
(chattel use and land-enhancement), attachment or nonattachment should carry the day
Purpose of annexation test is hard to apply (ex: mobile
homes) (Lichty v. Voigt)
Categories of Water
1. Surface Water
 Rainwater, snowmelt
2. Water in Watercourse
 A defined channel either on surface of land or
underground
 Subject to riparian rights
 Riparian land: land at border of land and water
3. Percolating Water
 Underground water that is trickling or oozing
Common Law Riparian Rights
o
Riparian rights known as natural rights
o Ordinary use: can take water in any quantity for
ordinary use, such as domestic (even to the point of
exhaustion)
o Extraordinary use: can take water in reasonable
amounts for irrigation, manufacturing, etc, as long as
substantially replaced and water not significantly
reduced in flow or character
o Flow: downstream riparian owner entitled to a
flow not substantially altered in volume or
quality
o Access to and from water
o Accretion and drainage
o
o
o
ii.
Current legislative regimes typically do not completely wash
away the common law of riparian rights, unless abrogated by
statute, those rights remain in force (Johnson v. Anderson)
BC Water Act can nullify riparian rights (Steadman)
If extracting water from different place than license gives
permission, it is unlawful (Schillinger)
BC Water Act
Title/use of all stream water is owned by Government, unless
license given or the water is unrecorded or domestic
a. Definitions (s.1)
 Domestic Purposes: for household use, sanitation,
fire prevention, domestic animals and poultry, and
irrigating small gardens
 Groundwater: water below surface of ground
 Stream: natural watercourse or source of water
supply, whether usually containing water or not,
ground water, a lake, river, creek, spring, ravine,
swamp and gulch
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b.
c.
d.
e.
f.
g.
h.
iii.
Percolating Water
o
o
iv.
Unrecorded Water: water the right to use of which
not held under license or under a special or private
Act
S. 2(1): title and right to use and flow of all water in any
stream in BC vested in government, except only in so far as
private rights have been established under license or
approvals given under this or a former Act
s. 2(2): no right to divert or use water may be acquired by
prescription (prescription = manner of acquiring property
as a result of use/enjoyment of land openly and peacefully
for a prescribed period of time)
s. 3: a proclamation by LG in Canada may make this Act
apply to groundwater
s. 42(2): it is not an offence to divert unrecorded water (i.e.
water for which no license has been issued) for domestic
purposes
 Note this latter part makes it lawful, but does not give
right, to use unrecorded water. Distinction of lawful =
a shield (so I can’t be sued, can argue nuisance if
someone else interferes with my use/enjoyment of
my land and hence water in/on it, but do not have
entitlement) from a right (i.e. entitlement) = a sword
(I can sue someone else for taking it away)
S. 5: licenses allow holder to divert water according to
specified use, time, and quantity; to store water; construct
necessary works; alter/improve stream
S. 41: person commits an offence if: hinders or interferes
with license holder or their works; puts sawdust, timber,
tailings, gravel, refuse, etc. in stream after having been
ordered not to; diverts water without authority, or more
than authorized to, or that cannot use beneficially; makes
changes in and about a stream without authorization. Fines
are up to $200,000 per day or imprisonment not exceeding
12 months, or both
S. 42(1): not an offence to divert water to extinguish a fire
(but must promptly restore)
Landowner can extract percolating water for any purpose,
with no regard to others (Bradford)
o Note: In Canada today no one has right to percolating
water
1989: percolating water was not a part of Water Act and not
owned by anyone, so common law principles applied
(Steadman v. Erickson)
o Could argue a nuisance claim
Ownership of Beds of Streams, Lakes and Ponds
o
Ad medium filum aquae
o common law presumption that the boundary of land
that is adjacent to a non-tidal river extends to the
o
v.
middle of that river, unless the documents of title
state otherwise
o When the body of water is tidal, ownership extends
only to the ordinary or mean high water mark
o Beyond that line the Crown holds title
o The foreshore (the strip between the high and low
marks) also belongs to the state
o Tidal rivers are treated as navigable and hence
reserved for general access
o Ad medium will apply as a rule of construction to help
assist courts and when land is sold on the border of a
river even if it is not explicitly stated in the maps
(Mickelthwaite)
o Ad medium does still applies under BC Torrens
system when land described as bounded by a nontidal and non-navigable stream (Canadian
Exploration v. Rotter)
Land Act
o Legislation passed after Rotter to phase out ad
medium rule in BC
o S.55(1): no part of bed or shore is deemed to have
passed to person acquiring grant unless red colour
used on map, or express provision to contrary, or
minister otherwise directs
o S.56(2): this does not affect any claim decided by
court before 1961 (so Rotter ok), or someone with
indefeasible title issued before 1961 that specifically
includes bed (whether or not red used)
Access by Riparian Owners
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Riparian rights include access, right to cross foreshore, and
mooring, but not the right to construct on foreshore (North
Saanich v. Murray)
If the waterway in it’s natural state is navigable, then it must
be treated as a public highway (Welsh v. Marantette)
b) Support
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The owner of land enjoys a right of support for land in its natural
state and at its normal level, a right that must be respected by the
owners of neighbouring properties
o Right exists because the removal of soil on one property
reduces lateral pressures imposed against adjoining lands
A purchaser of land is entitled to the level of support that existed at
the time the land was acquired
Excavation on neighbour’s land that leads to subsidence is
actionable and liability is strict
A claim for loss of support is predicated on the occurrence of actual
damage, not merely increasing the risk of future subsidence
The right to support applies both vertically and horizontally
o Ex: mining operations beneath someone’s land is actionable
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The natural right of support does not extend to buildings on the
land
If direct action of neighbor causes nature to directly or indirectly
impact natural state of land, they are liable (Cleland)
There is no claim if the neighbour’s actions did not have an impact
on nature impacting the natural state of the land (Bremner)
Natural right of support does not extend to additions or erections
(Welsh)
c) Accretion
i. As the contours of a body of water change, so does the
ii.
iii.
iv.
v.
IV.
configuration of the adjoining land
o Regulated by accretion, an element of common law riparian
rights
Accretion of the land is when there is recession of the water and
the land grows, no longer belongs to the Crown but to owner of the
land
In order for the landowner to benefit of an accretion the process of
transformation must be gradual and imperceptible in action
o It is the progress of accretion that must be imperceptible, not
the result
o Accretion may occur through non-natural forces, as long as it
is not the landowner who has caused it
Accreted land cannot be foreshore, it must be dry (Neilson)
Accreted land must come about by land projecting outwards
horizontally (deposits must attach to adjoining land), not through
vertical development (Re Bluman)
BASIC PRINCIPLES OF LAND LAW
a) The Doctrine of Tenure
If A owns land, and dies leaving no will or no next of kin as recognized as
recognized by law, the land will go to the immediate lord, which in Canada
means the Crown
 The doctrine of tenures embodies the rules for allocating land
rights and corresponding obligations, but does not describe their
duration
b) The Doctrine of Estates
Doctrine of estates sets rules for the duration of property rights. An estate
confers a segment of ownership as measured by time. There are freehold,
leasehold and fee tail estates.
 Estates are quantitative, unlike tenures, which are qualitative.
With an estate you have title to land for a period of time after
which it passes to the next successive estate owner, or the Crown if
there isn’t one. Technically no one owns the land, but they have an
interest in the land
 4 types of freehold estates
1. Fee simple
 Closest approximation to absolute ownership
 Potentially infinite duration and includes the most
proprietary rights
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An estate that is fee simple will continue after the death
of the current holder through a will or otherwise to those
who are entitled under statute
o If no takers an escheat will occur
 Proper language must be employed, or else only a life
estate will be passed
o “To A and his(or her) heirs”
2. Fee tail
 An estate in fee tail devolves only to lineal descendants
 Abolished in BC in 1921
3. Life Estate
 Estate given to someone for the duration of their life
 If A gives land to B, then the land returns to A upon B’s
death
o A is reversioner
4. Autre vie
 For the duration of someone else’s life
Leasehold Estate
 An ownership of a temporary right to hold land or
property in which a lessee or a tenant holds rights of real
property by some form of title from a lessor or landlord.
c) Equitable Interests
vi.
?????
d) Relationship of Real and Personal Property
vii. Real Property
Rights in relation to land
viii.
Personal Property
Things other than land
 Personal property is allodial: you own the very thing
itself, as oppose to estates which are separate from the
land
e) Marital Unity: Common Law and Equity
f) Separate Property Regime/Claims Upon a Breakdown of Marriage
V.
ISSUES IN ABORIGINAL TITLE
a) Introduction
i. Three Competing Meanings of Aboriginal Title
1. Aboriginal Title as a mere tenancy at will
 Not enforceable in Canada courts
 Only a moral right to occupy lands
 Can be terminated by the sovereign
 Treaties that extinguish Aboriginal titles are shams
because they have no legal right to the land to give it up
2. Aboriginal title as a purely personal right
 Aboriginal title is a legally enforceable communal
interest
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ii.
It amounts to no more than a bundle of non-exclusive
rights to hunt, fish, trap and pick berries on traditional
lands
 Rights may only be surrendered to the Crown and are not
legally a right of ownership or property
3. Aboriginal title as a form of communal ownership
 Aboriginal title is a property right in traditional lands
similar to fee simple title or ordinary land owners
(protected by the law of trespass)
 It can only be surrendered to the Crown
 In most treaties surrendering your title retained their
right to hunt/fish
History in BC
 1850-1863: Governor James Douglas makes a few treaties on
Vancouver Island. Process stops leaving only a small part of
BC subject to treaty
 1864-1870: land policy comes under control of Trutch, and
his approach is more settler-oriented
 1871-1880: BC joins Canada in 1871, and jurisdiction over
“lands reserved for the Indians” comes under federal power.
Ottawa makes treaties through the west, and disallows land
laws in BC. A year later Ottawa relents when BC agrees to the
formation of a reserve commission to allot reserves. Ottawa
claims BC’s land laws dealing with lands that are subject to
Indian title is unconstitutional
 1881-1887: A Nisga’a and Tsimshian delegation travel to
Victoria in 1887 to demand a treaty. A royal commission is
set up but instructed not to discuss Indian title, thus no
treaty is made
 1888-1905: a number of Aboriginal leaders keep putting on
pressure, but immigration results in pressure to reduce
reserves rather than to give Indian title. In 1899 dominion
treaty No.8 extends into northern BC, but the provincial
government takes no part
 1906-1911: various tribes agitated to have their title
recognized. Premier is unsympathetic. Legal opinion in
Ottawa is that Indian title is a form of ownership and exists
in BC. They want to force BC into court, but the Premier
refuses. Prime Minister takes steps to force BC into court, but
then loses the election
 1912-1916: Nisga’a Land Committee is formed and petitions
the king for a hearing before the Privy Council. Ottawa
instead proposes a royal commission on Indian reserves. BC
accepts as long as issue of Indian title is dropped.
Commission finishes work in 1916 and the Allied Indian
Tribes of BC is formed to protest Indian title
 1917-1925: a decade of talks between Allied Indian and
Ottawa takes place with no cooperation from BC
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ii.
1926-1928: Allied group gets a parliamentary hearing and
BC refuses to attend. Committee rejects claim to Indian title
and creates a law making it illegal to make these claims
against the government. Allied tribes collapses.
 1929-1950: everything put on hold due to war and Great
Depression
 1951-1972: ban on land claim activities is lifted in 1951 and
the Nisga’a Tribal Council is established in 1955. They bring
a lawsuit for Indian title, but lose at trial at the BC Court of
Appeal
 1973-1981: In the Calder case the SCC rules that Indian title
exists in Canada, but were split 3:3 on whether the title was
implicitly extinguished before BC joined Canada. Four of
seven judges say they cannot decide these questions because
the Nisga’a did not have BC’s permission to sue. Ottawa
establishes a land claim policy allowing one claim to be
brought forward at a time. BC refuses to take part and claims
that there is no Indian title in BC, and that if there was, it was
extinguished before BC joined Canada
 1982-1984: Constitution Act recognized and affirms existing
Aboriginal rights. The Gitskan and Wet’suwet’en decide to
sueDelgamuukw v. The Queen
 1985-1992: BC government agrees to participate in a new
treaty process. The Delgammukw case grinds on. They lose at
trial but BC Court of Appeal says there was no blanket
extinguishment of Aboriginal rights in BC prior to
confederation
 1993-1997: Nisga’a agreement in principle signed in 1996,
but a final agreement proves elusive. Delgammukw case goes
to SCC when no treaty is negotiated. In 1997 court orders a
new trial stating that Aboriginal title is a form of ownership
and that BC has never had legal authority to extinguish
Aboriginal title. Although the court does not actually hold
they title, the implication is that a significant amount of BC is
subject to unextinguished Aboriginal title.
Selected Legal Precedents (Aboriginal title as a form of communal
ownership)
a) The Royal Proclamation of 1763 states that lands were
reserved for them, and if they want to dispose of them they can
do so only to the Crown
b) The SCC in Canadian Pacific v. Paul said that Aboriginal title is
more than the right to enjoyment and occupancy
c) The SCC in Delgammukw said that Aboriginal title encompasses
the right to exclusive use and occupation of the land held
pursuant to that title. The Court also stated that provincial
governments may not extinguish Aboriginal title and may not
make laws relating to Aboriginal title or Aboriginal rights
a) Delgamuukw
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Supreme Court clarified the basic rules for the recognition of
Aboriginal title in Canadian law
Boils down to first occupancy. Must be shown that land was occupied
at the time of the assertion of British sovereignty
Continuity between present and pre-sovereignty occupation must be
shown
Occupation will have been made out if it is proven that a connection
with the land has been substantially maintained
The occupation relied upon must have been exclusive
The nature and sources of Aboriginal title
Early authorities regarded Aboriginal title as a personal and
usufructuary right
Aboriginal title is sui generis
o It is unique and no particular rule of property law applies to it
Unique features of Aboriginal title
o It is inalienable except to the Crown
o Title is held communally by the members of an Aboriginal
nation
o Aboriginal title also differs from other kinds of holdings by
virtue of its source: it pre-dates the assertion of colonial
sovereignty
o The right to the exclusive use and occupation of the affected
lands lie within the bundle of rights conferred by this kind of
title
o Use of land is not limited by traditional practices that are
integral to the Aboriginal society
 However, the use to which the land is put must be
consistent with the nature of the group’s historic
attachment to the land
b) R v. Marshall
Aboriginal rights, some of which are analogous to profits a prendre, can also
be recognized under the common law or by way of treaty
c) Cultural Property/Traditional Knowledge