What is Property
Chapter 1, Lawson and Rudden
- Ownership can be both “indisputable” and “unshared”. If we have a good title to a thing
then it is safely ours and our relation with it is protected against others.
- Content of ownership: (1) the right to make physical use of a thing (2) the right to income
from it (3) the power of management
Classification of Property
Chapter 2, Lawson and Rudden
- Property lawyers turn rights and interests into things because they have value, people are
willing to buy them and any valuable asset which is the object of commerce is properly
treated as a thing.
- Chattels: classified as things in possession and in action.
- Fixture: anything is a fixture that is not merely placed on the land, but attached to it with
the purpose of making it part of the land.
- Easement: you bind the other party and all the successors of that property to the contract.
The Legal Concept of Land
A. Air space and subterranean areas
- Whoever owns the soil holds title up to the heavens and down to the depths
Kelson v. Imperial Tobacco (1957) (English Q.B.)
Literal meaning of maxim – acceptance of “up to heavens” for overhanging sign, trespass
1) Facts: Overhanging sign in airspace, protruding 8 inches into air above land controlled by
lessee (P). He was a retail tobacconist, and gets property rights unless lease excludes them.
Hence the classification chattels real, so the fact that owner gave permission for sign
immaterial. The P alleged that by affixing the sign, the D had trespassed on his airspace and
he claimed a mandatory injunction for removal.
2) Issues: action should be trespass, and not nuisance since nuisance comes from old action of
“case”, which requires damage (trespass action does not, it is actionable per se)
3) Decision:
a) Accepted maxim i.e. property right of airspace. Hence trespass. No question as to limits
of airspace rights.
b) Noted Air Navigation Act expressly negated action of trespass for overflying aircraft,
further implies all airspace above is part of property
c) Damages not appropriate here since don’t want plaintiff’s rights to be able to be bought –
so instead injunction appropriate to remove sign (a discretionary equitable remedy)
Bernstein of Leigh v. Sky Views and General Ltd. (1977) (English Q.B.) Ordinary user rule
Limit on maxim – necessary for ordinary use/enjoyment of land – so aircraft do not
trespass (don’t take it literally)
1) Facts:
a) Defendant flew over (or nearly over) Plaintiff’s house to photograph it and then tried to
sell photo. So plaintiff claims trespass, even though photographs could be taken while
overflying adjacent land (but really complain of privacy, which not in CL). The D
wrongfully entered the air space above Ps house and thus was guilty of trespass and an
actionable invasion of his right to privacy.
2) Decision:
a) If follow maxim, then Kelson would suggest trespass.
b) But distinguished Kelson on the facts, creating the rule:
i) It is trespass if at a height necessary for the ordinary use and enjoyment of the land
and structures upon it. So only applies if it is contemplated that the owner might be
expected to make use of that airspace as a natural incident of the use of the land.
Airspace not unlimited, only trespass if the plane flies so low as to come within the
area of the ordinary user.
ii) Above that, land owner has no more right than any member of the public
iii) Policy – to balance rights of land owner with those of public in day of aircraft, etc.
(ratio, done by way of the ordinary use and enjoyment of the land test)
The Queen in right of Manitoba v. Air Canada (1980) (S.C.C.) [not assigned]
Reiterates up to use/enjoyment; and can prevent others gaining rights to space above land
1) Facts: Manitoba wanted to tax every plane (on value of aircraft and repair parts) that either
flew over or landed in Manitoba.
2) Decision:
a) Maxim a ‘fanciful notion’ – no one, state or individual, can own airspace, it is public
b) Reiterates land ownership up to height for proper use and enjoyment of land from
Bernstein. Bernstein is pretty much a part of Canadian law since other courts have used it
c) Added owner can also prevent anyone else from acquiring title or exclusive right to space
above land (e.g. someone could not build walkway joining two towers high above my
land)
Hashem v. Nova Scotia Power Corp. (1980) (N.S.S.C.)
Nuisance – own airspace for useful tower, though causes concern for airport (prior
warning)
1) Facts: Plaintiff built airport, defendant then built transmission towers along a right-of-way
(easement, had an existing deed) on adjacent land. Plaintiff says he cannot now use his
airport.
2) Claims: nuisance, not trespass case. Claiming both private and public nuisance:
a) Private nuisance = interference of an occupier’s use and enjoyment of land
b) Public nuisance = interference with public at large in exercise of rights common to all (no
general right to bring suit in tort for public nuisance, except A.G. or someone who has
suffered more than the general public for the amount of that extra suffering)
3) Decision: adjacent landowner owns the air space above it to height for transmission tower to
exclusion of aircraft using nearby airport. Therefore nuisance not proven
a) Other pilots felt they could still use airport if careful, so plaintiffs psychological worry.
But nuisance is based on objective, not subjective test.
b) Right-of-way (existing agreement) was in place, giving exactly the kind of notice that
was required here. The lines were registered for public to see, he didn’t check
c) Just because you were there first (i.e. flying over land before towers), doesn’t necessarily
give you the right to continue (i.e. to stop towers) i.e. previous flying doesn’t create
highways in the sky
4) Comment:
a) If no pilots had been able to use land (objective test) but right of way was there
beforehand, then probably still no nuisance
b) But if right of way was not there beforehand, then would probably be nuisance, leading to
injunction to remove poles
Attorney General of Manitoba v. Campbell (Man. Q.B.) (1983)
Nuisance – up to “necessary for ordinary use” – useless structure blocking aircraft
1) Facts: Municipal airport (not private like case above) next to Ds lands and the aircrafts go
over defendants land. He was willing to sell land at very high price, but then erected a “metal
finger” tower, causing airport to stop night flights. Plaintiff claiming nuisance. Certainly
defendant behaving badly, but provinces could also have asked feds for compensation to
defendant under the Aeronautics Act.
2) Decision:
a) Structure was not necessary for ordinary use of land – structure is completely useless
b) Plaintiff having a tantrum
c) Structure has to go (i.e. it is a nuisance)
Lewvest Ltd. V. Scotia Towers Ltd. (1981) (Nfld. S.C.)
Can protect airspace over land even if poor motives: low, fixed over-swinging crane
trespasses
1) Facts: building contractor using crane that swings over plaintiffs land, saving contractor half
a million dollars. Plaintiff has no particular reason to complain, other than trespass (also
possibility to make money, airspace now has value since someone wants to use.)
2) Decision: this is trespass, and even though P may have other goals, property rights must be
protected and should have gotten permission from P
a) court seems to apply maxim/Kelson approach of sacrosanct nature of property
b) Didn’t discuss the ordinary use/enjoyment from Bernstein and issued injunction
Didow v. Alberta Ltd. [1988, not assigned]
- The courts make an “orbiter” comment, it views cranes that go back/forward and as not
being permanent and should be actionable in nuisance and not in trespass.
Woollerton & Wilson Ltd. V. Richard Costain Ltd. (1969) (English Ch.D.) [From Lecture]
Over-swinging crane does trespass, but poor motives of plaintiff, so postponed injunction
1) Facts: defendant construction using crane that occasionally over swings plaintiff land, causes
no inconvenience, but plaintiffs claim trespass (to make more money?). If defendant couldn’t
use crane, due to restricted site, construction would have to block street
2) Decision: (pre-Bernstein so no mention of use/enjoyment). Assumed there was property
rights, so granted injunction to remove crane, but postponed its application till defendant
thought they would be finished (court obviously thought this a frivolous claim, but court
didn’t want to set precedent to deny plaintiff)
Subterranean Areas
Edwards v. Sims, Judge (1929) (Kentucky C.A.)
Maxim applies underground – people in cave trespass (no access) – now mostly statutes
1) Facts: Edwards owns land with an entrance to a cave, and turned it into commercial venture.
Lee wants to know if cave goes under his land (possible trespass), even though has no access
to cave. Sims J. ordered a survey of cave to determine this. Edwards now trying to get a writ
of prohibition to overturn that order.
2) Majority Decision: it would be a trespass if cave goes under Lee’s land, even though Lee has
no access, since land owner has property rights below surface. (order survey of cave)
3) Dissent: would not give title of cave to Lee (cave should belong to only the person who can
enter it), but would say it is not a trespass at this time (unless perhaps shaft drilled down from
Lee’s land). Analogy of below ground and airspace:
a) Deserve property rights if can make use/enjoyment, but not otherwise (unless being
interfered with in use/enjoyment of surface)
b) Deserve property rights if can bring it under dominion (i.e. with cave, need an entrance)
c) Lee is trying to reap what he hasn’t sown (Edwards put in work; discovery, exploration)
4) Today statutes cover natural resources such as minerals below ground, but common law still
applicable to caves
Hammonds v. Central Kentucky Natural Gas Co. (1934) (Kentucky C.A.)
Property only if under dominion – gas underground, water, wild animals (feræ naturæ)
1) Facts: defendant pumps gas into natural environment below ground as storage (so not a
constructed container). Plaintiff claims gas is trespassing below their land.
2) Decision:
a) Assuming gas (not physical) can trespass, could have approached like in Edwards v. Sims
(so trespass) or applied use/enjoyment test (so no trespass, but pre-Bernstein).
b) But, drawing analogies with wild animals (feræ naturæ) and water, only your property
when it is under your dominion (see dissent above) – when release it, goes back to wild
state. Hence gas was a chattel when in artificial container, but after put it back
underground doesn’t belong to anyone, so no trespass, and anyone can pump it back out.
B. Fixtures
1) Fixtures = joining together, when two or more chattels become attached
2) Example: start out with car frame and 4 separate wheels, when put together have one item, a
car. If someone wants their wheels back, there are no wheels (only a car)
3) Usual tests for personal property:
a) Main test: Usually the greater absorbs the smaller (greater/smaller in terms of market
price). The dominant chattel becomes the main chattel
b) Could they have a separate existence in a useful sense
c) Can they be taken apart without damage
4) Object can change its classification e.g. tree (realty)  cut down  lumber (chattel)  built
into house  (realty)
Re Davis (1954) (Ont. H.C.)
Consider degree (how well fixed) & object of annexation (for sake of chattel or land)
1) Facts: at common law widow had interest in one-third of husband’s realty estate. In this case,
does realty include bowling alleys which were clipped down to building (or are they chattels)
2) Rule: identified 2 important issues:
a) Degree of annexation: how well connected
b) Object of annexation: why were they affixed – so that the thing affixed can be better used
as that thing, or in order to improve the land/building, such as enhancing its value or
improving its usefulness for the purposes to which it is put i.e. for the sake of the chattel
or the sake of the land.
- If the object of the affixing is to improve the freehold, then even if the chattels are only
slightly affixed to the realty, they may well become part of the realty
- If the object of affixation is the better enjoyment of the land, then the affixation does not
make them part of the realty.
- They use the “objective assessment” for why (what society as a whole would say) The
more specialized the building is, the more likely the chattel associated with that
specialization is a fixture.
3) Decision: the bowling alleys are chattels (not fixtures) in this case because:
a) Not much permanency and easy to remove, so suggests more like a chattel
b) Affixation was so that bowling could be better carried out, rather than to improve
building (contrast dome building with hole in roof, then place in telescope)
- They were not affixed for the better use of the land, but in order that bowling might be
carried on more efficiently.
LaSalle Recreations Ltd v. Canadian Camdex Investment Ltd. (1969) (B.C.C.A.)
Leading BC case: prima facie fixture if attached, unless objective degree & object tests can
refute (so it’s a fixture if it is attached unless can be rebutted by degree and object)
1) Facts: Concerns a security interest (i.e. waiting for bill to be paid) in carpets laid down in
hotel. If they are fixtures, this interest should have been registered at the Land Registry
Office, which it was not. If they are chattels, no problem. So which are they?
2) Rule: applied the rule from Stack v. T. Eaton Co. (1902) (Ont Div.Ct.) – memorize this:
a) Prima facie characterization:
i) If not attached other than by own weight  chattel
ii) If attached even slightly  fixture
Unless circumstances are clear for all to see (i.e. objective test) to show alternative intent
by considering:
iii) Degree of annexation and
iv) Object of annexation
b) Most important: The intention of person affixing article is material only so far as can be
presumed from degree and object of annexation (i.e. NOT interested in subjective
reasons)
- Stack Principles
o Presumptions: It not attached to the land other than by their own weight, not to be
considered as part of the land, unless it can be shown that they were intended to
be part of the land
o Degree: Articles affixed to the land even slightly are to be considered part of the
land unless the circumstances are such as to show that they were intended to be
chattels
o Object: The circumstances necessary to be shown to alter prima facie character of
articles are circumstances which show the degree of annexation and object of such
annexation, which are patent to all to see
o Intent: That the intention of the person affixing the article to the soil is material
only so fact as it can be presumed from the degree and object of the annexation.
3) Decision: carpets are pinned down (so prima facie fixtures), but
a) Degree of annexation is slight (removable with little difficulty, without causing nontrivial damage), suggesting chattels
b) Object of annexation is more to improve building as a hotel (in which loose carpets are
not suitable) rather than improve use of carpets as carpets, suggesting fixtures.
i) Note building classified as specialized (i.e. hotel with multiple rooms each with
shower, etc.) often will support argument that object of annexation is to improve
building (e.g. telescope put in domed building with hole in roof). Of course hotel
could be turned into hospital where carpets not wanted, so in more abstract sense
could argue just a building with multiple rooms (i.e. level of abstraction important in
how see relationship between chattel and land). Compare with bowling alleys above
that do not make the building into a specialized bowling building (e.g. consider
structural changes)
ii) Permanent rather than temporary annexation also considered to support fixture rather
than chattel, but permanent was not thought to mean forever, rather for long enough
time for article to serve its purposes
Court gave more weight to object of annexation than degree, and ruled carpets are fixtures.
Diamond Neon (Manufacturing) Ltd. V. Toronto Dominion Realty Co. Ltd. (1976) (B.C.C.A.)
Since no restrictive covenant, sign is fixture (dissent: sign should speak for itself)
1) Facts: Previous owner of land contracted with plaintiff sign maker to put in pole (sunk into
concrete) and attach sign to advertise business. Their contract said “sign” (does this mean
pole and sign, or just sign) will remain property of plaintiff, only leased to previous owner,
and is not to be deemed a fixture. The Land sold and ended up with defendants, who then
sold it again. The P wanted the sign back according to the contract
2) Issue:
a) Contract with previous owner does not bind future owner of land unless registered
against title of land as a “restrictive covenant”, in which case it would “run with the land”
b) So issue here is: is the “sign” a chattel (then D committed tort of conversion and must
return the sign) or fixture (in which case sign part of land and plaintiff has no remedy)
3) Decision: looking at the degree and object of annexation, they are fixtures, hence were part
of land when defendant bought it, and so no conversion.
4) Dissent: the sign had a separate value, and was removed and sold (suggesting not a fixture).
Also, a sign that relates to a particular occupant should be a chattel, but a sign that relates to
the building should be a fixture i.e. sign can speak for itself (e.g. sign with address is fixture,
but sign with doctors name on it is chattel). Qualification e.g. if a car lot, and likely to remain
one, then generic sign “cars for sale” could be fixture.
L&R Canadian Enterprises Ltd. V. Nuform Industries Ltd. (1984) (B.C.S.C.)
Machinery attached to building to steady themselves is fixtures and so are things not
attached, they have been intended to be part of land, as a whole are an entity
1) Facts: 2 security interests involved, one in the building and another in the machinery.
Mortgagor (A) purchased building from mortgagee (B), installed equipment (mortgaged from
other chattel mortgagees) for manufacture of papier mâché pots. Much of machinery
anchored to floor or building. On foreclosure, A claimed equipment was chattels, not
fixtures, and so should remain with A (chattel mortgagees agreed). B however claims they
are fixtures and so should stay with building on foreclosure
2) Issue: is this building just a general building with machinery inside (like building with
bowling alleys in Re Davis) or is it specialized (like hotel in LaSalle Recreations)
3) Decision: court did not explicitly go through this question, but saw building and machinery
as an integrated, whole entity.
a) Degree of annexation: some evidence that removal of key parts of machinery would not
be straightforward (requiring torches to burn off bolts) and would cause substantial
damage (to concrete floor slab for example), and fairly permanent affixing as well.
b) Object of annexation: Mortgagor claimed that anchoring was required only to provide
stability, avoid vibration and make the operation safe. Court said attaching to steady
machinery is not inconsistent with object of improving building.
c) Ruled that machinery is fixtures. Moreover, because building + machinery one operation,
other tools not affixed at all (e.g. forklift truck, scales, and maybe backup parts) that are
also required for the ordinary running of the operation are constructive fixtures. However,
made distinction for new parts, not yet attached, which remain chattels.
Lichty v. Voigt (1977) (Ont. Co. Ct.)
Don’t use LaSalle/Stack approach in Ontario – consideration of subjective intention
1) Facts: Plaintiff put mobile home on farmland they had bought. Then sold farm to defendant,
with understanding that mobile home would be removed. Due to muddy conditions, plaintiff
could not remove mobile home by time sale was finalized, and upon learning about
possibility it might now be theirs (Ontario Property Act states that when draw conveyance it
includes everything not explicitly excepted) defendant claimed title to it.
2) Issue: was the mobile home a chattel or fixture?
3) Decision:
a) Court looked at degree of annexation (e.g. septic tank and concrete pad) and concluded
mobile home did have some degree of attachment, but could be removed relatively easily
with little damage in this context (i.e. on farmland).
b) As to object of annexation, court rejected Stack test (used in LaSalle Recreations) as a
clear statement of the law. Instead looked at subjective intention, which was clearly that
plaintiff intended it to remain a chattel (which the defendants understood).
Thus mobile home is a chattel, although some damages might be due to the defendants if
there is damage on removal of mobile home.
4) Note: thus differing law in BC and Ontario, could argue for a subject intention test at SCC
Alberta v Hansen [not assigned] re hydro dam
C. Water
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-
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Like wild animals and underground gas, cannot have title in water until its captured
Three categories of water at Common Law
(1) Surface water: e.g. rainwater, snowmelt, water that “squanders” itself over the surface
of the land and occasion may flow in a natural galley. Basically water on the surface, any
galley that are dips, not water courses (like puddles). In common law you could put up
barriers to block surface water. In case of flood, can protect yourself in reasonable
selfishness e.g. put up sandbags even if water then floods neighbour, but cannot pump
water already on your land onto neighbours. I.e. no obligation to accept flow of surface
water, unless perhaps if it is in a small gully or dip and heading to your land.
(2) Water in watercourse (subject to riparian rights): a defined channel either on surface
of land or underground, is subject to riparian rights. Riparian land is land at border of
land and water i.e. touched by water each day. Includes lakes and the sea (with the sea
and tidal rivers, riparian land is that which goes down to the mean high water mark)
(3) Percolating water: underground water, trickling/oozing like water through a sponge,
doesn’t flow in a defined channel like underground stream (i.e. not a watercourse).
1. Riparian Rights
[not in lecture notes, may need to remove]
Common law riparian rights: ordinary use, extraordinary use, flow and access in
watercourse
1) These have now been mostly subsumed in by BC Water Act (i.e. they are mostly gone)
2) Riparian rights described as a natural right, i.e. they come naturally with the land. Also have
right of support, and possibly of accretion.
3) Common law rights for riparian owners:
a) Ordinary use – could take water in any quantity for ordinary purposes such as domestic
and watering stock (to the point of exhausting water from downstream riparian owners)
b) Extraordinary use – could take reasonable amounts of water for irrigation, manufacture,
as long as substantially returned so watercourse not significantly reduced
c) Flow – downstream riparian owner entitled to a flow not substantially altered in volume
or quality (pollution)
d) Access – to and from water
e) Accretion and Drainage
4) History: riparian rights same from England which is wet, so not always appropriate in other
places where water not to available
B.C. Water Act, R.S.B.C. 1996
The title/use of all “stream” water to Govt, unless license, unrecorded water/domestic
1) Memorize the following from B.C. Water Act, R.S.B.C. 1996
a) S.1 definitions:
i) Domestic purposes = for household use, sanitation, fire prevention, domestic animals
and poultry, and irrigating small gardens
ii) Groundwater = water below surface of ground
iii) Stream includes natural watercourse or source of water supply, whether usually
containing water or not, ground water (but see s.3 below), and a lake, river, creek,
spring, ravine, swamp and gulch
iv) Unrecorded water = water the right to use of which not held under license or under a
special or private Act
b) 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
c) 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)
d) S.3 – a proclamation by LG in C may make this Act apply to groundwater (REPEALED)
e) 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
i) 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).
2) Have general gist of the rest:
a) S.5 – licenses allow holder to divert water according to specified use, time, and quantity;
to store water; construct necessary works; alter/improve stream
b) 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
c) S.42(1) – not an offence to divert water to extinguish a fire (but must promptly restore)
- What about s. 1.1, s. 4 s. 92 and the Water protection Act
Johnson v. Anderson (1937) (B.C.S.C.)
Opinion 1) – riparian rights still exist except as against party with Water Act license
1) Facts: defendants diverted water (had license, but not to divert) from stream which ran
through plaintiffs land (didn’t have license, used water for domestic and stock purposes i.e.
lawful by Water Act s.42(2))
2) Claim: plaintiff claims his riparian right of flow has been violated, question was whether this
riparian right was taken away with the creation of the Water Act
3) Rule:
a) Interpreted Cook v. City of Vancouver (1912) to say riparian right of flow not taken away
completely, but only against someone who had license to divert water.
b) Although the new Water Act didn’t have the provisions saving certain riparian rights like
in previous Act, court held this did not mean that it was intended to remove riparian
rights completely (surprisingly) i.e. court striving to preserve riparian rights in face of
perhaps clear legislative intent to do away with them
c) Thus, common law riparian rights of use and flow still exist to protect against an
unlawful diversion of the stream.
d) By s.42(2) of Water Act riparian owner can still use water until all water flowing by or
through land has been granted by license
4) Decision: since defendants diversion is not lawful (no license to divert) they are infringing on
plaintiff’s riparian rights
Schillinger and Ponderosa Trout Farm v. H. Williamson Blacktop & Landscaping Ltd, (1977)
(B.C.S.C.)
Opinion 2) – although judge said didn’t need to decide matter, riparian rights extinguished
1) Facts: plaintiff downstream
riparian owner using water for fish
Plaintiff authorized
cultivation with license, defendant Defendant
to divert water from
putting silt in river upstream,
silting
here
killing the fish
water here
2) Claim: plaintiff suing defendant
Plaintiff actually diverting
for nuisance (is usually a balancing
water from here
act, and if plaintiff is acting
illegally, little chance of being successful)
3) Decision:
a) Plaintiff diverting water from different place than authorized by license
b) Plaintiff not using water for domestic purposes, cannot rely on s.42(2) of the Water Act.
c) Can plaintiff rely on riparian rights (of extraordinary use of water in undiminished
quality)? No, since riparian rights extinguished (although judge said didn’t need to decide
this matter, but perhaps he did, hence semi-obiter)
Hence plaintiff using water illegally, nuisance claim dismissed.
4) Note: could have considered the illegality of defendant in polluting and then balanced the
two parties i.e. perhaps no need to make strict “common law riparian rights gone” statement.
Steadman v. Erickson Gold Mining Corp. (1987) (B.C.S.C.)
Opinion 2) – in B.C.S.C. judgement, obiter dictum = riparian rights extinguished
1) Facts: plaintiff was piping water to his house from spring-fed dug-out on his land,
substantially for domestic purposes (had small rock and gem business, no significant).
Therefore lawful under S.42(2) of Water Act (allows diversion and such works as necessary
for diversion – important to be lawful in balancing act of nuisance case). Defendant built
road up hill, causing silt and mud to contaminate plaintiff’s water system. Plaintiff claims
nuisance.
2) Decision: case actually about percolating water (see C.A. below) but at trial, in referring to
Johnson v. Anderson said that decision was wrong i.e. in obiter dictum, said s.2 takes away
riparian rights. At appeal, little comment on this matter
- The activity of the P comes within s. 42(2) and therefore it is not illegal. It was able to
distinguish Schillinger on that basis. The P did have a small rock and gem industry but
was deminimus. Steadman had conferred on him by statute, a prima facie right to divert
unrecorded water for domestic purposes under s. 42(2) of the Act.
Summary
Conflicting opinions in BC – must discuss both in any case, but second more persuasive
1) Johnson = riparian rights remain for water in defined channel, except as against lawful
holder of license (i.e. recorded right)
2) Schillinger says (in semi-obiter) and Steadman (trial) says (in obiter) riparian rights have
gone.
3) Note all BC courts – there has been no S.C.C. decision on this matter
4) Whether or not riparian rights still exist, a landowner could still sue for nuisance (i.e.
diminished use and enjoyment of land) if they were using water but then that was interfered
with (although would want to show use of water lawful, compare with Schillinger)
2. Percolating Water
Mayor, Alderman, etc. of Bradford v. Pickles (1895) (English H.L)
Percolating water can be extracted by landowner for any purpose (including wasting it)
1) Facts: defendant owns higher land, water collects underground and due to fault lines
percolates down to lower land owned by plaintiff, where water is collected and supplied to
town of Bradford. Defendant sank shaft and tunnel through fault to drain land, but with water
going in different direction than to plaintiffs land (plaintiff suggested purpose purely to
extract cash from city, i.e. improper/malicious – compare with metal finger in A.G. of
Manitoba v. Campbell). Resulted in discolouration and diminished flow for plaintiff. In
addition, statute Act of 1854 where town of Bradford took over the old waterworks company
and its land, was said by plaintiff to disallow defendant’s extraction of water.
2) Decision:
a) if you have a right to something, your motive is irrelevant e.g. you can squander it.
b) Quoting Chasemore v. Richards, landowner can extract percolating water for any
purpose, with no regard for others i.e. no one has right receive percolating water.
Compare with wild gas in Hammonds.
c) Would have been different decision if it had been an underground stream, since then
riparian rights would have (at least at this time in England) applied, ordinary use and
extraordinary use (certainly could not just waste it)
d) Finally, partly because it contained no compensation, the Act of 1854 was interpreted to
only protect the taking or diverting of water already under the dominion of the plaintiff
(i.e. on their land), not as giving right to plaintiff against people stopping it reaching them
3) Note: Penno v. Manitoba and Pugliese v. National Capital cast considerable doubt upon
applicability of this case in Canada today – in the latter, the court said there is no absolute
right to percolating water, and instead had to be balanced against (again non-absolute) right
to support. Also modern legislation probably overrides this case as well.
Steadman v. Erickson Gold Mining Corp. (1989) (B.C.C.A.)
1989: groundwater not yet in Water Act, nuisance to pollute ground or watercourse water
1) Facts: The P was piping water from a spring for domestic use. Also had a small mineral
business. The D started to do some drilling and it caused the water to get silt and mud in it. P
now claims nuisance. At trial was said s. 42(2) applied and could use water legally
2) Decision:
a) The Water Act does not yet apply to groundwater, either stream or percolating: even
though s.2(1) says stream which by s.1 includes ground water, because of s.3 and since
no proclamation had (at least by this time) been made. So common law rules apply:
i) riparian rights apply to underground stream (use and flow in quantity and quality)
ii) percolating water common property, and anyone can appropriate as much as they like
But either way it would be nuisance to pollute groundwater to detriment of neighbour,
even though that neighbour had no proprietary right in water at time of pollution
(compare with polluted air from neighbour)
b) But is water here groundwater? I.e. when does percolating water taken from well or
spring become a watercourse? Court couldn’t say, so also considered case as if
watercourse:
i) If watercourse, plaintiff’s use is lawful by s.42(2) of unrecorded water (which may all
become recorded one day) hence right to such water in usable state against another
who does not have authority to pollute it.
c) So nuisance either way.
1995: Water Protection Act vests all groundwater in government, hence Water Act applies
1) S.3(2) gives title and right to use of “percolation and any flow of groundwater” to
government
2) So Water Act now applies to both underground streams and percolating water, but note
S.42(2) still allows domestic use of unrecorded groundwater.
3. Ownership of Beds of Streams, Lakes and Ponds
If Foreshore is tidal or navigable then belongs to Province, if non-tidal & non-navigable
then ad medium applied in the past
1) Foreshore = an area that gets washed with tides, between low water line and mean high water
line (i.e. does not include land covered only by high-spring or extraordinary tides), owned by
provincial crown (any land that goes down to mean high water line is riparian). Justification
is that this land is not “manurable” i.e. no good for agriculture.
2) Sea bed = constitutional issue between federal and provincial
3) River/stream bed:
a) If tidal, treated in same way as foreshore, bed owned by provincial crown
b) If not tidal:
i) If navigable (like a “highway”): bed vested in provincial crown (at least in western
provinces and Ontario)
ii) If non-navigable:
(1) If old certificate of title, rebuttable rule of ad medium filum aquae applies (i.e.
riparian land owners on either side own their half of stream bed out to centre of
stream, unless otherwise stated / intended with knowledge on both sides)
(2) If newer certificate of title, by s.55 and s.56 of Land Act, ad medium rule does not
apply
Mickelthwaite v. Newlay Bridge Co. (1886) (English C.A.)
1886: ad medium applies, even if bed not coloured or area included, unless known intention
1) Facts: predecessor to plaintiff, who owned land on both sides of river, sold land on one side,
described as “bounded on north by the river”, but map colouring used to identify land did not
colour in the adjacent stream bed out to centre, and did not include the area of the stream bed
(sold land was described as 7,752 yds2, but with river bed out to centre would have been
10,031 yds2). Defendant, subsequent owner of that land, now wants to build a bridge across
the disputed part of stream bed (plaintiff has toll bridge nearby, new bridge would be free).
2) Issue: should ad medium rule apply – was never explicitly addressed in conveyance (the rule
that riparian land owners on either side own the half of the stream bed out to the center)
3) Decision: ad medium applies because:
a) Ad medium is a rule of construction (i.e. to be presumed to assist court in interpretation,
as opposed to a common law rule, which would obviously apply unless expressly
contracted away)
b) When land sale is to border of river or public highway, ad medium rule applies even
though neither colouring on map nor area includes it. But is rebutted if:
i) Express statement in conveyance saying otherwise, or
ii) Circumstances, known to both parties, exist at time of conveyance, that show
intention by vendor to make use of that part of stream bed
4) Policy reason: the half of the stream bed closest to you can be most usefully used by you
Canadian Exploration Ltd. v. Rotter (1960) (S.C.C.)
Even in Torrens system ad medium still applies to “bounded” by non-tidal/non-navigable
stream
1) See Torrens system under Land Law below
2) Facts: appellant and respondent landowners on opposite sides of river. Appellant removed
large quantities of sand and gravel from riverbed, both on its adjoining side of river and on
opposite side.
a) Appellant owned their half of river (so no damages due for material removed from here)
b) But had previous land sale resulted in respondent owning their half – only so if ad
medium rules applies
i) If so, no damages for this side
ii) If not so, this side also belongs to respondent, so more damages
3) Issue: Do the provisions of the Land Registry Act manifest an intention to exclude the ad
medium rule in respect of certificates of indefeasible title in BC?
4) Decision (B.C.S.C. and S.C.C. majority): no – ad medium does still apply under BC Torrens
system when land described as bounded by a non-tidal and non-navigable stream, because:
a) Although legislation can take ad medium rule away (e.g. Dominion Lands Act), not so
with Torrens system because:
b) Practical difficulties in surveying, as required for conveyance, the middle of streams
whose flow varies throughout year i.e. great difficulty putting stakes down centre of
watercourses
c) Principle of ad medium (whether construction rule or common law) is too deeply
embedded to be disturbed or doubted
d) Clear intention in this case that half of stream bed should be transferred
5) Dissent (and B.C.C.A.): said the object of the Torrens system is to save people from having
to “go behind” the register i.e. look into the past and figure out what went on, but the
majority decision here would make such searches necessary with land bounded by non-tidal
and non-navigable streams to figure out who the half-stream bed belongs to.
Sections 55 and 56 of the Land Act, R.S.B.C. 1996
Land Act, S.B.C. 1961 following Rotter phases out ad medium rule
1) Following Canadian Exploration Ltd. v. Rotter, legislation passed to phase out ad medium
rule:
2) 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
a) In S.55 it says that if Crown has granted its land to someone else no part of the bed passes
onto the person obtaining the grant.
3) 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)
a) S. 55 is not applicable in certain situations, the ones listed
4) Note: since new title certificates are issued every time land is sold, s.56(2) will gradually
bring all titles under s.55(1) i.e. together, these section will gradually reverse Rotter decision
- It is slowly getting rid of the “ad medium” rule. You don’t get up to the middle of the
stream if you don’t fall within the s. 56 exception: it is in red, the minister allows it or
there is an express provision
R. v. Lewis (1996) (S.C.C.) (see generally)
Does ad medium rule apply to Indian reserves – probably, but not decided since navigable
1) Issue: do the Squamish nation own half-bed of adjoining Squamish River?
2) Decision: ad medium does not apply to navigable rivers, although perhaps assumed that if it
was not navigable, then rule would apply
4. Access by Riparian Owners
- Right of access doesn’t depend on the ownership of the land it relates to riparian rights. It
relates to the right of the land that abuts the water. Not who owns the bed.
- It exists independently of navigability. It has its limits, gives you a right of access to the
water, but not the right to navigate on the water. If you want that, then you have to prove
that it is navigable
District of North Saanich v. Murray (1975) (B.C.C.A.)
Riparian rights include access, right to cross foreshore, mooring, not construct on
foreshore
1) Issue: does a riparian owner (adjoining sea) have right to construct structures (e.g. wharves)
on foreshore
2) Rule: Quoted basic law from book:
a) Riparian rights include right of access to/from water for the private owner (not for
public), regardless of who owns bed – this is wholly distinct from right to navigation
b) Access includes right to moor a vessel adjacent to land for period necessary to
load/unload
c) This access and mooring rights must not be used in a way to interfere with other riparian
owners access rights or public navigation rights
d) With tidal waters, riparian owner (i.e. to mean high water mark) has right to cross
foreshore (owned by Crown), but not to construct on foreshore (without grant from
province). If a pier or causeway already exists, riparian owner has right to use it (perhaps
for a fee)
- General Right of access by riparian owners: a riparian owner is entitled to access and
regress to and from that water mark
- Nature of Right of access: right is a private and not a public right and any interference
with it is actionable without proof of special damage.
-
-
Exercise of right of access: owner must not interfere with any public right of navigation
which exists in the water on which his land abuts or put down anything which disturbs
the foreshore.
Incidental rights: right of access includes the right to land, or pass over the shore or bed at
all states of the water for that purpose, even when the shore of bed is not vested in him.
The right to moor vessels adjacent to his land for such a period as is necessary to load or
unload them and the in the case of tidal waters if they cannot be loaded or unloaded in on
tide, the right to keep them there until the operation is completed. A riparian owner must
not moor a vessel in such a way as to interfere with another riparian owners right of
access of so as to interfere with any public right of navigation.
Welsh v. Marantette (1983) (Ont)
Navigable rights if in natural state useful as public highway: commerce/predictability
1) Issue: have riparian right of access & to moor boat, but as float away the riparian right ends
and, if it exists, the public right of navigation takes over. Of course, owner of bed of
waterway has right of navigation.
2) Facts: defendants owned a widened channel (used to be a ditch) leading off a creek (no ad
medium here). Plaintiffs land adjoined the channel.
3) Claims: Plaintiffs claimed right of navigation down the channel to reach the creek by boat
(also right of support – see below)
4) Decision: The old ditch, before widening, was a watercourse because it was a distinct
channel with visible banks/margins (note how current, artificial waterway does not carry
rights itself – rather looking at original natural waterway). Hence, riparian rights exist for
widened channel (e.g. plaintiff has right of access, which they currently enjoy). But there are
only navigability rights if it has characteristics of a highway:
a) Capable of use in its natural state by public for purpose of transportation/commerce
between terminal points that public has access to (so does not include every small
watercourse that a little boat could go up, or a private boat harbour).
b) Need not be navigable continuously, but fluctuations (e.g. freeze up) must be regular and
predictable so dependable so can work commerce around it (and blockages, such as
rapids, that boats can be carried around, ok)
- In this case, the ditch (i.e. channel in its natural state) was not navigable in this sense
because it was not like a highway. So Ps right of access was not coupled with a public
right of navigation (it’s like a boat harbour created on defendant’s private land).
D. Support
Have a right of support (lateral and subjacent) to land in its natural state
1) Right of support is a natural right attached to ownership of land in its natural state (i.e. does
not include additions e.g. buildings). Only applies to neighbouring land. If you have land,
you have the right to support. Frequently linked with nuisance (loss of enjoyment),
negligence (the way you have done it/conduct), and trespass (not for lateral). Two aspects:
a) Horizontal/Lateral support: if you are too close to the boundary and a house falls over,
question is whether land would have subsided on its own without additional weight of
house. If so, then get damages for loss of support of land and consequential loss of house
(contrast: house is part of land in fixtures, not considered part of natural land here). If not,
no right of support claim here, but might still claim nuisance.
b) Vertical/Subjacent support: person digs under e.g. neighbour burrows under your land i.e.
may be trespass, or may have given easement for mining (but not properly shored up).
Strictly should ask same question if house falls – would land have subsided in its natural
state without additional weight, but often assume this because it’s a loss of vertical
support and gravity takes over.
2) Note can buy an easement for support of buildings from neighbours
Cleland v. Berberick (1915) (Ont H.C.)
Support includes indirect i.e. not to facilitate wind/rain by excavations on adjoining land
1) Facts: plaintiff, defendant and defendant’s wife owners in that order alongside lake.
Defendant and wife each removed sand from their lots.
2) Claims:
a) Plaintiff claims that as a result of sand removal, action of wind and water has been
greatly facilitated, resulting in washing away large part of plaintiffs sandy beach.
b) Defendant claims his wife’s removal of sand was the cause (she doesn’t adjoin plaintiffs
land, so no right of support there).
3) Decision: found for the plaintiff that adjoining sand excavations were primary cause (even
though indirect by storms) of plaintiffs land collapsing, since right of support is that
someone’s land should be left in its natural state without interference by direct or indirect
action of nature facilitated by the direct action of adjoining land owner
- D’s actions caused the wind and rain to work faster, his actions facilitated the damage
Bremner v. Bleakley (1924) (Ont.App.Div.)
But if wind naturally blows sand off land (and neighbour prevents its return) no action
1) Facts: defendant excavates holes on land, sand from neighbouring plaintiffs land blown
around, and that which falls in holes does not have chance to return (so defendant can
effectively collect and sell plaintiffs sand).
2) Claim: closest cause of action was loss of support, so plaintiff claimed that.
3) Decision: Right of support protects from actions by neighbour that cause subsidence – the
digging of the holes here (which was lawful) did not cause the sand to blow off plaintiffs
land, rather only not to return – thus not strong enough chain of causation. Plaintiffs have no
property in the sand after it has blown off their land – rather, things naturally deposited on
defendants land become incorporated with it e.g. accretion (if sand remained plaintiffs
property, like a chattel, plaintiff could claim conversion when defendant sells it, but on the
other hand defendant could compel its removal – no precedent found for this argument).
Perhaps claim of nuisance would have been more successful due to loss of enjoyment of land
(i.e. beach) since focus would not be on cause of loss of sand, but rather cause of loss of
enjoyment.
- It is different from Cleland because in that case the digging caused the sand to move.
Here the D did nothing to move the sand, he just captured wild sand. No causation
Gillies v. Bortolullzi (1953) (Man. Q.B.)
Lateral support only for natural land not weight of buildings, but was liable for vertical
1) Facts: Typical loss of support case in that plaintiff leased building, on neighbouring land
defendant (contractor) excavating. Ps wall falls down, and claims loss of support (and
additionally trespass (undercut), negligence and nuisance). Note could argue the
neighbouring land owner should be responsible since gave permission to contractor to
excavate, and also that subsequent owner buying land with a support wall to support
neighbours building might also be responsible for its upkeep.
2) Decision: Loss of lateral support due to excavation did not remove support for plaintiffs
natural land but only for weight of building – hence no action. But defendant did dig
underneath plaintiffs land, removing subjacent support, hence liable (and in separate cause of
action, also for negligence, nuisance, and trespass)
Rytter v. Schmitz (1974) (B.C.S.C.) [not assigned]
Not entitled to lateral support for increased pressure by building, but generally with
vertical
1) Facts: Part of plaintiffs building collapsed after defendant (neighbouring land owner) got
contractors to excavate and remove soil. P argues D not only abused Ps lateral support by
excavating so closely but also dug over and on Ps property line. D argues that in law you are
not entitled to lateral support if you add weight to the land, like a building.
2) Historically: law of prescription = a right to lateral support easement of buildings was gained
if the building had been on the land for 20 years, was uninterrupted, without concealment or
deception, and peaceable, and known. These prescriptive rights have been cancelled as of
1976 under our land registry system because of “mirror” idea in Torrens, but pre-existing
prescriptive rights could be registered / brought as action before that date, as is the case here.
P seeks that prescriptive right.
3) Decision: here, no right to lateral support because of increased pressure due to building, but
defendant undercut plaintiff’s building removing vertical support (assuming here that
generally subjacent support for both land and building – shortcut way of saying land would
fall on its own account and take building with it), hence liable. Noted right to support is
strict, so no need to show intent, negligence or trespass
Welsh v. Marantette (1983) (Ont)
“Fill” on land is not natural part of land, so no right of lateral support for it
1) Facts: defendants owned a widened channel (used to be a ditch) leading off a creek (no ad
medium here). Plaintiffs land adjoined the channel.
2) Claims: Plaintiffs claimed defendants liable for erosion to plaintiffs land due to widened
channel, caused by wake of boats, fluctuations in water level, ice grip, etc. i.e. right of lateral
support was taken away by dredging of channel (also claimed navigation right – see above)
3) Decision: there is a natural right of lateral support incidental to land ownership, but does not
apply to additions or erections (unless by grant, etc). Claim dismissed in this case for two
reasons: (1) since plaintiffs land had been covered with fill, and it was this additional soil that
was being eroded, not the original, natural land. (2) P failed to prove that the erosion was
caused by the relation of the canal, could be caused by many other factors (muskrats).
4) Comment: when does fill become natural (i.e. historically civilizations build on top of old
one, so fill becomes natural at some time). In US, suggestion of time period, others ask when
is there an integration of the layers. No answer in Canada.
Pugliese v. National Capital Commission (1977) (Ont. C.A.)
No absolute right to support by or extract percolating water – negligence & nuisance
available
1) Facts: plaintiffs claim they suffered subsidence of their homes and lands due to lowering of
ground water table by defendant who was building a sewer and “dewatered” to allow
tunnelling i.e. pumped out water from deep drainage wells. Ps homes suffered many different
types of damages due to the lowering of water.
2) Claims:
a) Negligence: plaintiff claims defendant should have better investigated subsurface
conditions, selected more appropriate method of water control for tunnelling (e.g. use of
compressed air rather than dewatering), more closely monitored affects, and terminated
when informed of problems.
b) Nuisance: interfered with use and enjoyment of plaintiff’s land
c) Breach of statutory duty: plaintiff bringing civil action for defendant’s statutory breach
since pumping out more water than allowed under Ontario Water Resources Act.
3) Issue: How choose/balance between the right to extract percolating water v. right of support
(i.e. support here due to percolating water pressure in ground beneath land) Does the owner
of the land have a right to support of water beneath his land, not flowing in a defined channel
and does such an owner have a right of action in nuisance for any damage resulting from the
abstraction of such water?
4) English rules: Acton v. Blundell (1843) gave absolute right to land owner to extract
percolating water, and whatever the motive as in Bradford v. Pickles. So no action in support
if removal of percolating water causes subsidence under neighbours land, but there is action
in support if not just water but has physical attributes e.g. running silt (i.e. wet sand), brine
(i.e. salt water, by making the solid liquefy). As to nuisance and negligence, Langbrook v.
Surrey (1969) in similar case as here said no negligence due to absolute right to percolating
water, even for malicious reasons (i.e. if can do harm on purpose, can hardly be held liable
when do it carelessly), and no nuisance.
5) American rules: Some States still follow absolute right to percolating water, sometimes with
the limit that cannot extract for sole purpose to injure neighbour or to waste it. Others (not as
wet as England) have implemented the reasonable use doctrine i.e. can extract amount
necessary for useful purposes connected to land. Others have extended this to the correlative
rights doctrine i.e. apportions underground water where not enough for all reasonable uses.
Neither have been adopted in Canada. Some US courts have allowed negligence actions
when user could have reasonably avoided harm to neighbours wells or water supply, and for
subsidence even when abstracting pure percolating water when simple precautions (e.g.
observation wells) could have been used, and hence nuisance action as well.
6) Australian rules: both negligence and nuisance have been allowed in this type of case.
7) Ruling: Remember Water Protection Act applies to percolating water now, so have to read
common law in conjunction with that. No previous Canadian case in point (and English cases
don’t necessarily apply since after date of reception of law in Ontario 1792, although
normally more important with statutes than with common law).
a) There is no absolute right to support by percolating water (so no automatic right to
damages), but does have a right not to be subjected to interference with such support that
amounts to negligence or nuisance (i.e. Interference with right to support by percolating
water can give rise to cause of action in both negligence and nuisance).
b) Similarly no absolute right to extract percolating water.
c) Negligence: defendants should reasonably consider plaintiffs when pumping out water,
physical proximity gave rise to foreseeable risk of harm, hence duty of care here, and
focus upon conduct of defendant, applying reasonable person test to determine if proper
standard of care was taken (new trial ordered to determine such questions)
d) Nuisance: note negligence not prerequisite for action for nuisance i.e. can be doing
something reasonable and legal, but still a nuisance (private nuisance = interference, for
substantial length of time, by owners/occupiers of one property with the use of enjoyment
of a neighbouring property). Must ask not if defendant used their land reasonably, but
whether it was reasonable considering that they had a neighbour. A balance between
owner and neighbour must be struck. Taking of all reasonable care not a defence, since
there might be some actions that no matter how carefully undertaken constitute a
nuisance.
e) Breach of statutory duty: (Note: this tort action restricted by later case Saskatchewan
Wheat Pool Case (1982) (S.C.C.)). To decide if public has civil right of action after
statutory breach, consider:
i) Was object of breached statutory provision to prevent damage of the nature that
occurred? (Here no, Water Resources Act not concerned with protecting against
subsidence)
ii) Was provision intended to create a public duty only, or in addition an enforceable
duty to individuals harmed? (No, since not protecting individuals against subsidence,
but rather protecting public as a whole)
iii) Were statutory punishments intended to be the only remedies available? (Yes)
iv) Would contemplated beneficiaries of provision be without an effective remedy
otherwise? (No, have other remedies of negligence and nuisance available).
Hence no civil remedy for breach of statutory duty in this case.
E. Accretion
Accretion = gradual and imperceptible growth (or erosion) of land, or receding water
1) Accretion is growth of land at border with water, either by build up of bank by deposits
carried in water and dropped so they attach to the adjoining land, or by previously submerged
land exposed by receding water. Similarly with loss of land through erosion or diluvion i.e.
advancing water.
2) In tidal cases, when land becomes dry land, no longer foreshore that belongs to Crown (i.e.
between low and mean high water marks), rather becomes part of riparian owners land. Some
think of this as a natural right or land like riparian rights and right of support, others think of
it as a rule of convenience.
3) Justification: considered to be fair since landowner will have additions (accretion or receding
water) and losses (erosion or advancing water), and convenient to regard boundary as
between land and water as it changes over the years. Also, unlike foreshore, this land is now
“manurable” i.e. useful for agriculture, so makes sense to pass it to private hands for use.
4) Must be:
a) gradual and
b) imperceptible in progress (although not in result i.e. can see consequences over time) and
c) by natural causes or as a result of human activities not intended to grow / lose land
5) As opposed to avulsions which are the sudden and perceptible loss or addition to land e.g.
significant shift in stream after flood or earthquake, in which case boundaries remain the
same – note virtually no case law since government intervenes in such circumstance
Southern Centre of Theosophy v. South Australia (1981) (Privy Co.)
Accretion includes windblown sand, imperceptible = can’t see consolidation / stable
advance
1) Facts: Appellant is the owner (perpetual lease) of land beside lake, and claims ownership of
accreted lands which have been built up in the north by water deposits / water receding, and
in south also by windblown particles (i.e. sand dunes reaching outwards). But you can see the
sand moving, how can this be accretion?
2) Rule:
a) First, the doctrine of accretion applies to (this is privy council, so doesn’t bind Canada):
i) Inland lakes (i.e. non-tidal sheet of more or less stagnant water) and
ii) Allodial land i.e. held by Crown directly as land rather than as an estate from a
superior lord (i.e. not as fee simple)
b) Principle of accretion can be excluded (i.e. agreement by parties that border will remain
fixed so accreted land goes to other party than usual) but requires (like with ad medium
rule) explicit terms in documents, since presumption that principle applies is strong i.e.
just colouring on maps or delineation (i.e. drawing outline) is not enough (taken to mean
a water boundary) (have to be clear about this in the agreement, will apply to gained and
losed land)
c) Extended principle of accretion to include land growth due to windblown sand at a
land/water boundary (common law can be adjusted / expanded by analogy) – did not
decide if this would apply to land/land boundary (e.g. where boundary described as “the
edge of the sand dunes”) (broaden the principle)
d) There is a “grey area” between imperceptible (because you could see the sand move) and
what should be considered avulsion, hence usually left to the jury. Can see sand moving
blowing about here and in high winds can see build up, but imperceptible if can’t see a
consolidation taking place bringing about a stable advance of the land (looked at pictures
here)
A.G. B.C. v. Neilson (1956) (S.C.C.)
Time accretion begins relevant, can’t be foreshore, policy issues (e.g. “manurable”)
irrelevant
1) Facts: Respondent owner of island, and in 1930 Crown built highway along edge of island in
the Fraser River (title of all highways is in the Crown). Through accretion the island enlarged
beside highway.
2) Issue: did accretion begin before 1930 (in which case it and subsequent accretions would
belong to respondent) or after 1930 (in which case accretion has joined to the highway and
hence belongs to Crown)
3) Rule:
a) Accreted land cannot be foreshore, since foreshore is washed over by tides, whereas
accreted land is “dry” land above mean high water level
b) Doctrine of accretion applies to tidal and non-tidal, and navigable and non-navigable
rivers.
c) Policy issues of whether land is now “manurable” / useful are irrelevant in determining if
it is accreted land
4) Decision: most judges found that the land in question at the time was still overflowed by
river waters i.e. was foreshore prior to building of road, and hence land in question now
belongs to the Crown.
Re Bulman (1966) (B.C.S.C.)
Accreted land must go out, not come up – deposits should attach to adjoining land, not bed
1) Facts: dispute over ownership of land at junction of North Thomson River and Kamloops
Lake, where river drops deposits as enters relatively dormant body of water in lake, forming
sand bars/banks through vertical development.
2) Rule:
a) Policy issue irrelevant – fact that land is now “manurable” irrelevant in deciding if land is
accreted – it is the gradual and imperceptible test that must be used
b) Accreted land must come about by land projecting outwards horizontally (deposits must
attach to adjoining land), not through vertical development (i.e. not deposits attaching to
bed). In this case it is to bed; hence the owner of the bed gets the land.
Re Monashee Enterprises & Minister of Recreation & Concervation B.C. (1981) (B.C.C.A.)
Upland border of Crown “strip” is not mobile “snake” unless explicitly described as such
1) Facts: A strip of land one chain wide immediately above the mean high water mark was
reserved by Crown, with private ownership above that – so Crown is riparian owner (to
preserve right of access for public or perhaps build highway). Accretion to foreshore then
occurred.
a) Issue: not riparian land, rather inland border, so not really about accretion. However, does
inland border move as accretion / erosion occurs and hence as MHWM moves?
2) Decision:
a) Not persuaded by practical Crown arguments (i.e. strip to build road on, or erosion might
obliterate strip completely) because Crown can prevent erosion at foreshore or
expropriate upland property.
b) Rather, if private owner upland builds near property line with strip, then by erosion
property line moves up, so Crown now owns land under house, and house owner could
not have prevented the erosion as the Crown could.
c) Certainly explicit words in grant could create an ambulatory strip, taking away from land
previously granted as upland border moves in, but not so here (although did say “one
chain up from mean high water mark”).
d) Hence upland boundary of strip is not mobile unless grant explicitly describes it as such.
4. The Basic Principles of Land Law
The Doctrine of Tenure
Tenures = pyramid of relationships, King-tenants in chief-mesne-demesne (now
unimportant)
1) Tenures part of feudal system (where a lord takes charge of land and who in return for
services granted parts of their land to vassals or tenants). The kind of tenure specified the
obligations that such land holders had to give to their lord, whereas the type of estate
specified how long the holding would last. Tenures ended in 1660 (Abolition of Tenures act)
2) Tenures not quantitative (like estates which specify time period of occupation) but qualitative
relationships (i.e. related to social/political/status/wealth set up)
3) Pyramid of land grants:
a) Freemen hold freehold under different types of tenures and estates:
i) King – allodial owner i.e. absolute ownership as opposed to holding from a lord
(similarly today the Crown only allodial owner, with everyone else holding an estate
in land)
ii) Tenants in Chief – Barons or aristocrats, hold land from the King under loyalty, fealty
(oath to be faithful) and homage (acknowledgement King is his Lord), with protection
coming down
iii) Mesne – (pronounced “main”) lords subdivide land and grant to other lords below
iv) Demesne – lords at bottom who hold land to occupy for themselves. The King,
Tenants in Chief and Mesne lords would all hold some demesne land for themselves
b) Unfree men gained copyhold tenure (not really part of pyramid, rather underneath it)
i) Villeins – i.e. surfs, entitled to hold small patches land, according to particular
customs/rules of the particular manor (i.e. land of a Tenant in Chief) at a particular
time. Copyhold continued in England till 1926 (when converted to freehold socage)
but never existed elsewhere.
- Unfree = uncertainty of services, may to have work for like 40 days
- Free tenure = owe the Lord specific things
- Main difference between the two is that one can be seen as a contract of service and the
other as a contract for service
- Copyhold = land which they held was recorded as being theirs
4) Types of tenures reflected status and involved different services to overlord (conditions
became obligations/advantages connected to the land itself, so passed with it)
a) Lay: Military and Non-military
i) Grand Sergeanty (Military): bound the tenant to perform some specified service for
the Kind. Like carry banner or lance. It was recognized that only the kings tenants in
chief could hold their land by this. Also had petty sergeanty which was less
prestigious and became socage.
ii) Knights Service (Military): the tenant had to pay for the military service (scutage)
iii) Socage (non-military): the great residuary tenure. Any free tenure which was neither
a spiritual not a military tenure, came to be called this
b) Spiritual – held by religious institutions
i) Frankalmoin – spiritual/ecclesiastical service to overlord – fell into disuse
-
If the tenant died leaving an infant heir, the Lord took over the land and reaped the
benefits as long as he took care of heir. Also could sell them in marriage and keep the
money
- If they died leaving a heir of full age, then the heir had to make a payment called “relief”
before he could succeed the land.
- If the tenant was convicted of felony or died, the king got the land back for a year and
then it was escheated back to the Lord. The Lords tried to come up with ways to avoid
the incidents of tenure.
- Subinfeudation: tenant could alienate either part or whole of a tenement by making a
grant to some person to hold for them, thus creating a new tenure and adding a new rung
on the ladder
- Substitution: the alienor, instead of making a grant to the alienee to hold of the alienor
and thus creating a new tenancy might arrange matters so that the alienee simply took
over the alienors treatment and stood in his shoes.
5) Freehold tenure had to be certain i.e. services had to be known since freemen involved and so
could not demand of them at will – some minor exceptions
6) Over time, pyramid flattened with more tenures held directly from King. Thus incidents
provided King much money, allowing maintenance of Stuarts reign independent of
parliament – incidents of tenure abolished (except escheat and forfeiture) in 1660 for this
reason
The Doctrine of Estates
Estates: “unGodly jumble” but flexible: fee simple/tail, life, reversion, remainder, autre vie
- It is “less then freehold” if the date of its termination is fixed or capable of being fixed.
- Estates in Possession: Give a present right of enjoyment of the land at the present time
- Estates in Expectancy: Gives a present right to the enjoyment of land at some future time.
- Estate in remainder: signifies a future gift to someone not previously entitled to land
- Estate in Reversion: signifies the residue of an owner’s interest after he has granted away
some lessor estate in possession to some other person. This will be found in cases where
the owner has made a grant which does not exhaust the whole of his life estate.
- “Sesin”: this denotes quiet possession of land of a particular kind.
1) Estate = legal right to possess and occupy land for a certain time, but separate from the land
itself (unlike tenures where obligations passed with land)
- The doctrine of tenure is concerned with the relationship between lord and tenant
- The doctrine of estates is concerned with the relationship between the tenant and the land
2) Quantitative (not qualitative like tenures): title to land for period of time after which it passes
to next successive estate owner, or if none, escheats back to Crown (B.C. Escheats Act), so
technically no one (except Crown) owns the land directly (i.e. allodial ownership), rather
only own an interest (i.e. an estate) in the land, and inherently uncertain such as for life
(unlike freehold tenures which were certain).
- Uncertainty of duration become the hallmark of freehold estate instead of the quality of
tenure by which the land was held
3) 4 different types of freehold estates: “FEE” denoted that the estate was an estate of
inheritance and that it could continue forever and “simple” or “tail” distinguish the class of
heirs
a) Fee simple: fee = inheritable, simple = without qualification.
-
-
“To A and his heirs” (“to A” = words of purchase i.e. who gets it, “and his heirs”= words
of limitation i.e. what type of estate given – does not actually confer anything to A’s
heirs, so note importance of distinguishing words of purchase from words of limitation).
Thus can theoretically hold forever i.e. closest approximation to absolute ownership, but
if die and no heirs (according to intestacy statutes today) escheats to Crown and estate
ends (superior lord historically)
Fee simple: originally would exist if tenant or any heirs survived. But now you can pass
on to another tenant if you died leaving no heir. So only terminate this type of estate if
you died leaving no heir, which would then escheat to Lord
b) Fee tail: “To A and the heirs of his body” i.e. words of limitation restricts grants to lineal
descendants (children, grandchildren, etc.) keeping it within the family i.e. dynastic
aspirations.
- Fee tail: continued as long as the original tenant or any of his lineal descendants survived.
Brother or non-lineal don’t count
c) Life estate: “To B” (historically), “To B for life” (today), estate for time of B’s life
- Life Estate: lasted for life
i) E.g. A has fee simple, grants “to B for life”, then A the grantor, has a reversion (a
future interest) which is the part of a grantors estate/interest not disposed of by the
grant – when B dies possession reverts back to A (if A dead, then according to A’s
will, or to heirs, or if none then to Crown). A called the reversioner.
ii) E.g. “A grants to B for life, and to C in fee simple thereafter”. So A wants it to go to
B and then to B’s children C (so note grantor can create a number of estates in
succession, and thus can “control from the grave”). C called the remainderman. So C
must wait for B’s death to take possession, and B could sell autre vie (see below) –
would not affect C since B is still the measuring life. A has no reversion here, C has a
remainder (a future interest) = the estate created when a grantor, who, having granted
away part of an estate, by the same instrument (or at least at the same time) grants to
another an estate in the same land limited to begin when the first grant comes to an
end.
iii) Note this can cause difficulties for B e.g. what if B doesn’t want to live on the granted
land and would rather sell it. So often better for A to grant to B in fee simple and let
B take care of C, or else A could transfer land to a trustee (see below) for benefit of
B, and trustee could be given wide powers to lease, sell, etc. during B’s life, and to
then grant to C on B’s death
iv) Note different situation if A first grants to B for life, and then later grants
subsequently to C in fee simple. First grant automatically created a reversion since
something left un-disposed of, then second assigns the reversion to C, thus no
remainder created.
v) Can also impose a contingency = not vested till contingency met, and automatically
creates a reversion on failed contingency. E.g. A (holds fee simple) grants to B for
life then to C in fee simple at 21 years of age. If C dies at 19, reverts to A on B’s
death. Thus future interest = a present right by virtue of which possession will (i.e. if
no contingency or contingency met) or may (i.e. with contingency) be obtained in the
future.
d) Autre vie = life of another – “To B for the life of A” e.g. A has a life estate and
assigns/sells to B, obviously has to be done inter vivos i.e. between living people (since
estate ends when A dies and goes back to original grantor). If B dies, can leave it in will
to B1.
4) Leasehold estate: originally a tenant could not recover possession if evicted by a third party
(although they could against the landlord), and so fell far short of an interest in land, and
hence considered personalty rather than realty. But over time, protection against
dispossession strengthened and became to be treated as a freehold interest, hence the name
“chattel real”. Duration of lease set at time of creation
Equitable Interests
Equity – “use” on the “use” became modern trusts (holding title for use/benefit of another)
- All of the above on tenures and estates was at law (as opposed to equity). Here the
development of trusts is outlines. Modern trusts can be used by a donor/grantor to give
legal title to one person (the trustee), while giving “equitable title” i.e. use/benefit to
another (the cestui que use, i.e. beneficiary)
“Use” (stage 1): up to 1535
- The uses were at first temporary
- The effect of conveyance on uses was that the person to whom the land had been
conveyed (the feofeeo of uses) become at common law, the owner of the land. This was
used if you were leaving for policitical reasons and therefore may have to forfeit land
a) Feoffment: “A to B in fee simple” (“and his heirs” in historical language) “for the use of
C in fee simple” (“and his heirs”). A = feoffor, B = feoffee, C = cestui que use.
b) Common law courts would only consider first part of this, so B is the legal title holder (
c) C would have to go to chancery/equity to enforce this – legal position of common law
would not be changed, but if B refused to allow use for C, chancery would act in
personum (i.e. against the person) with possibility of prison for B.
d) Thus “use” created where holder of legal title was compelled by Lord Chancellor to hold
the interest not for their own benefit, but for the benefit of another.
e) Purpose of the “use”: to avoid incidents of tenure by giving legal title to B instead of C.
This prevented the Lord from taking over the land. Like you may have to forfeit land in
times or emergenecy or treason, if you die and leave the estate to a minor heir then have
issues wardship and marriage in which the superior lord could take all profits from the
estate – thus if heading off to Crusades, better for A to give land to B for the use of A’s
minor heir
f) Another purpose was that Statutes of mort main (around 1272) had disallowed passing of
land to “dead bodies” i.e. corporations such as ecclesiastical orders outside of commerce.
To get around this could give a “use” to the order instead.
Statute of Uses 1535: “Use” (stage 2)
- King got income from tenure incidents but the “use” was restricting this. So created
Statute of Uses and executed the use i.e. changed from B (legal title holder) / C
(beneficiary) to B (eliminated) / C (legal title holder) i.e. gave the fee simple to the cestui
que use
-
Now “uses” had been removed, needed some other mechanism to leave land to heirs.
Prior to Statute of Wills 1540 could not leave land by will, but could do so by “use”
instead i.e. “A to B for use of A for A’s life then for use of C”.
Use on a Use: “Use” (stage 3): finding loopholes in the Statute of Uses
- Created loopholes due to the exact words of the statute
i) Statute said anyone “seized” (i.e. seisin is the possession of a freeholder) to the use of
another would invoke execution of the use. So if instead of giving freehold to B for
use of C, instead give leasehold to B i.e. “A to B for 99 years for use of C for 99
years” then avoid the statute
ii) Statute said B a person, so “A to B (a corporation) for use of C” would avoid statute
iii) Statute interpreted to only apply if feoffee B passive, so if gave B duties such as
maintenance could avoid statute
- The big loophole to “exhaust” the statute was to create 2 uses i.e. double use. “A to B in
fee simple to the use of D in fee simple to the use of C in fee simple”. Initially didn’t
work (Jane Tyrrell case in 1557) but later it did (Sambach case in 1635) reflecting
political changes of the times. So after 1635 statute would apply and execute the first use
(so D becomes legal title holder) but interpreted not to apply to second use.
Trust: “Use” (stage 4): emergence of modern trust
- Shortcuts – words that gave rise to a double use became truncated:
- “A to B in fee simple to the use of B in fee simple to the use of C in fee simple”, so
statute executes first use (B given title, which already had), thus avoiding D the 4th person
- “A [unto and] to the use of B in fee simple in trust for C in fee simple”, B = trustee, C =
beneficiary (i.e. cestui que trust). Note “use” and “trust” are interchangeable
- “A to B in fee simple in trust for C in fee simple” – note this flirts with the statute of uses
since now do not expressly create 2 uses/trusts (only a concern where the statute of uses
still applies – abolished in England in 1926, but still applies here and is in the R.S.B.C. as
an appendix). To be strictly correct should have 2 uses/trusts words, but courts likely to
interpret “trust” to mean double use, and they look for 3 things to create a trust:
(1) certainty of intention to create a trust
(2) certainty in regards to the subject matter
(3) certainty as to who the beneficiaries are
- If innocent purchaser and innocent beneficiary, purchaser wins out
- Suppose trustee (who has the legal title) sells to purchaser without telling them about the
trust and beneficiary? “you can’t give what you haven’t got” but trustee does have the
legal title so can sell it, and common law doesn’t care about uses/trusts.
- Thus equity developed doctrine of notice: beneficiary protected (i.e. purchaser given
legal title subject to trust) unless bona fide purchaser, for value (i.e. not “volunteer” given
land as a gift), and without notice (i.e. purchaser didn’t have actual notice or constructive
notice i.e. should have known about beneficiary through inquiries) in which case the
purchaser gets title without trust (tough luck for beneficiary – two innocents here so one
has to lose). Of course, if trustee is around can sue for full restitution, but often left
country or bankrupt.
Relationship of Real and Personal Property (Successive Interests)
Re Swan (1913) (English Ch. D.)
Trust used to create flexible estate-like succession for personalty (splits legal title from use)
1) Estates provide much flexibility for land, but is this possible with personalty? E.g. pen from
A to B for life then to C. Personal property is allodial (i.e. you own the very thing itself, as
opposed to estates which are separate from the land itself) so no estates with personalty. Yet
there is still a practical need for such things, as in this case where mother wanted to give
successive interests in personalty to her children.
2) Facts: Emily Swan in her will said that her personalty (e.g. jewellery) should be left to her
daughter, with a remainder in the event of her daughter dying childless that the personalty
should go to her son. The daughter died childless, and the son is now claiming proprietary
interest from daughter’s estate. It should have been maintained and passed on to him. He is
claiming compensation since daughter had actually broken up some of the jewellery and
action of tort not available since torts die with the wrongdoer
3) Issue: The judge considered 5 different ways of making this “estate”-like bequest effective:
a) Ownership in executors (i.e. trustees) – the executors might keep legal title of the
personalty, and the participants (daughter then son) would only have the use/benefit of
personalty, held in trust for them by the executors
b) Ownership in ultimate taker, usufructuary interest in first taker – the first taker (the
daughter in this case) might only have a usufructuary interest (i.e. the right to the use and
enjoyment of something, separate from ownership) and the remainderman (the son) will
be the legal owner
c) Ownership in first taker, and subsequent takers have executory (i.e. yet to be performed)
“gift over” (i.e. an interest created upon expiration of first taker)
d) (Accepted by court): First taker is trustee (either with regard to ownership or possession)
for the remainderman, subject to her own life interest (i.e. she is tenant for life). Thus
daughter has allodial ownership of personalty since she is trustee, and she is then also the
first beneficiary, and the son is the second beneficiary, and when she dies her estate takes
over as trustee for ultimate beneficiary. So trust splits allodial legal title (which stays put)
from equitable interests i.e. use/benefit (and beneficiaries can change successively).
e) First taker is bailee (i.e. has lawful possession, but not ownership, so still have to
determine owner in this option). This implied bailment contract was the courts second
preferred option (bailment: e.g. if you find something you become the bailee and can
protect it from the whole world except against someone with a better interests i.e.
ownership or prior bailee)
4) Decision: by viewing the daughter as a trustee she had an obligation to maintain the
personalty for the second beneficiary, the son. Since she did not, the daughter violated a
proprietary interest (i.e. breach of trust), so her estate has to provide compensation to the son.
Note that an injunction could have be used against the daughter (while she was alive) to
protect the personalty from damage or loss for the subsequent beneficiary (the son).
5) Comment:
a) Note then that can have an equitable interest in personalty, and today most trusts are of
shares and bonds rather than land.
b) But cannot do this at all with consumables, nor with future property (which can only be
the subject matter of a contract)
c) However, courts have been reluctant to allow incorporeal interests from land law to
invade personalty law e.g. difficult if not impossible to attach covenants to chattels in the
same way that covenants can be made to “run” with the land (e.g. a restrictive covenant
that binds future owners of the land to, for example, limits on buildings that can be placed
upon the land)
Re Fraser (1974) (B.C.C.A.)
Successive legal interests in personalty with wills: title in ultimate holder + other life
interest
1) Swan provided the theoretical basis for using trusts to allow for successive interests in
personalty. This case recognizes successive interests in personalty at law, without the use of
trusts
2) Facts: Deceased’s will gave a “life interest” in all his property (both realty and personalty) to
his wife, and the residue to a charity (senior citizen’s housing society). This case was brought
over a dispute in taxes (i.e. succession duties) with the executor claiming cannot have a life
interest in personalty, and the charity would not know what it was to actually receive due to
encroachment.
3) Trial judge: found that personalty can be held by widow in life interest with an executory gift
over to the charity, but that she also had an absolute power of encroachment i.e. she could
use up the personalty itself, the corpus (i.e. the capital), bit by bit over time, and since
absolute, there might not be anything left by the time she dies, in which case the charity
would get nothing (Encroachment allows nibbling according to the terms of that
encroachment, and is often set up on purpose to allow for circumstances where the income
from the corpus is not sufficient e.g. might specify encroachment allowed for education of
children)
4) Decision:
a) Considered the intention of the testator, and concluded the following.
b) The ultimate holder (the charity) has a vested interest (i.e. is absolute owner) in the
personalty, but its enjoyment is postponed while the first holder (the wife) has her “life
interest” (use, usufructuary, possessory) in it. Thus the first holder can enjoy the revenue
from the corpus, but no more (since nothing in the will to suggest any more was
intended). Thus she cannot encroach upon the corpus but rather she must preserve the
personalty in its entirety for the ultimate recipient (i.e. she has a fiduciary duty towards
the charity).
c) The court rejected the suggestion that the wife obtained absolute ownership in the
personalty subject to an executory (i.e. yet to be performed) bequest (i.e. she must pass it
on) upon her death to the charity. However, even with this approach the intention of the
will was still not to allow encroachment.
5) Comment:
a) This decision seems to go against the common law notion that personalty is only capable
of indivisible ownership – thus this is an exception to that principle but only applies in
the case of wills so far – similar successive legal title so far unknown in inter vivos
(between living people)
b) Some feel the court did not need to do this, but could have instead used the trust approach
(and in fact the will in this case did create a trust), which allows successive beneficiaries
to be specified both inter vivos and testamentary.
Marital Unity: Common Law and Equity
Common law: marital unity, life estates curtesy & dower, “use” for separate equitable
interest
1) Historically at law:
a) Woman who married lost her property because of “marital unity” – husband seized all of
her property (except personal paraphernalia) and he became entitled to all income from
such land. To sell this land, both spouses had to act together. She could not contract or
sue. Husband jointly liable for tort’s committed by her, either before or after marriage.
Husband had obligation to support her, and this survived into widowship (wife
considered under the “wing, protection and cover” of husband, hence the term coverture
to describe the marriage relationship)
b) Marital unity dismantled piecemeal in mid C19th (and declared completely dead in
Ontario in 1978).
c) Curtesy: if wife died, husband (widower) automatically got life estate in all lands she
brought into the marriage (provided that she would have been entitled to those lands upon
her death, and that she had had a child capable of subsequently inheriting the land).
d) Dower: if husband dies, wife (widow), provided certain conditions met (e.g. she was
capable of producing a child who would be capable of inheriting the land), was entitled to
1/3 of deceased husband’s realty. Designed to provide her with shelter, and overruled the
rules of primogeniture i.e. that eldest son takes all property on death of father. Husbands
could insulate their property from dower through a form of conveyance called “deed to
uses”.
2) Historically in equity (increased married woman’s legal capacity considerably):
a) Usually through a marriage settlement, the “use” was used to allow wife to have property
separate to her husband (and keep it away from his creditors) – title was held by a third
party trustee/feoffee for the use of the wife.
b) Wife could dispose of this equitable property by deed or will, and could be her own
trustee. She could contract, sue and be sued in respect to this property. Restraints on
alienation (disallowing inter vivos transfer) could be added to avoid coercive husband
from pressuring her to transfer it to him
c) However, to set up such separate property required expensive lawyers, so practically only
available to the wealthy.
3) Late C19th: English Married Women’s Property Act 1882 adopted the equity approach to
allow married women to have separate property as if they were feme sole (i.e. like unmarried
women who could own property like men). Similar legislation throughout common law
provinces.
4) With separate property, and now that marital unity, curtesy and dower are gone, need
legislation to deal with property during marriage, on marriage breakdown, and when one
spouse dies.