The Meaning of Property

- Private (right to exclude)

Forms of Property - State or Public (right to exclude)
- Common (right not to be excluded)
Broad Consensus on 3:
- Right to exclude others
o Immunity against wrongful taking
- Right to consume, use, and enjoy
A “Bundle of Rights” o Right to capitol / income
o Duty to not use in such a way that it causes harm
- Right to transfer (“alienate”)
o By sale, gift or will
o Entire interest or a portion

The Right to Exclude

Essentialism:
- Single variable essentialism
o The right to exclude is necessary and sufficient
Essentialism vs - Multiple-variable essentialism
Nominalism and the o Right to exclude is necessary, but not sufficient, one of several
“Core” Meaning of necessary elements.
Property Nominalism:
- Property is any bundle of rights & obligations a legal system lables as
such  no core meaning

Yanner v Eaton Facts:

(1999) Aust HC - Yanner is an aboriginal Australian who had killed 2 saltwater crocs
“Croc Harvest” - Charged with “taking fauna without a permit”
- Asserting native title right to hunt
- Prosecution argues = native title was extinguished by Fauna Act
- Fauna Act = “all fauna … is the property of the Crown”
Issue:
- What does “property” mean (in this case)?
Ratio:
- Property is elusive, variable, a fiction
- “a bundle of limited wildlife management rights”
Analysis:
- Essentially wild animals are, by definition, not capable of being fully
“possessed” by one person/institution
- Dissent:
o “Whatever else property might mean, it describes a
relationship between owner and object by reference to the
 power of the owner to deal with the object to the exclusion of
all others”

- Constitutional freedoms of expression and assembly

- Human rights laws banning discrimination
Limits on the Right
- Laws protecting workers, tenants, travelers, environment
to Exclude
- All reflect realization that some nominally private arrangements
implicate broader social values
Facts:
- Carswell is picketing her employer in a mall (legally)
- Harrison, mall manager, asks her to leave and Carswell refuses
- Carswell charged with trespass
Issue:
- Does the mall owner have “sufficient control or possession of the
common areas … to invoke” trespass? (YES)
Harrison v Carswell
- Does the right to picket supersede the right to private property? (NO)
(1976) SCC
Ratio:
“Shopping Mall
- Mall owners have sufficient control (via Peters) to kick out picketers
Picket”
Analysis:
- Would need statute to challenge the precedent of Peters

Dissent:
- Peters should be distinguished on the facts (labour vs boycott)
- Shopping mall is “modern marketplace” which makes it quasi-public
- Mall owner should only be able to exclude for misbehavior/illegal
- “Shopping mall” amendments to provincial trespass laws
- BC Labour Relations Code
After Carswell
o Section 66  basically can’t charge with trespass for Carswell
situation

The Case for Private Property

- Very old conception of property based on “right of the discoverer of

property”
o Problem: “few accumulations of great wealth were ever
simply found”
Carole Lewis “The - Labour as justification for property (still used/relevant, but problems)
Right to Private o Problem: who labours alone these days?
Property” - Right to property comes from right to act as free person
- Economic efficiency = property induces productivity
- Rights-based
o Hegelian “general right” vs Lockean “special right” ( not
valid p. 32)
Hegelian Rights- - Property develops freedom and personality
 - Personality, desirable traits, are developed via responsible ownership
Based - “Transcends the subjectivity” of human experience through the
imposition of will on materiality.

Why do we justify property  Belief that it is a human right

First Possession
- The first to discover and possess a thing owns it
- Rare today  fundamental to land law through “New World”
Labour
- Lockean  “… when he takes something from the state that nature
has provided … he mixes his labour with it … [and] he makes it his
property”
Leading Theories
- In tension with need / equality
Liberty & Autonomy
- Private possession necessary for human freedom
- In tension with equality
Social Utility
- Private property maximizes social happiness & productivity by putting
resources in hands of those who value them most.
Three features of efficient property rights:
Economic Efficiency - Protected exclusivity (individual entitlements are enforced)
(Dominant Theory) - Universality (as many owners as possible to exchange goods)
- Transferability (goods move to those who value them most)

Novel Property Claims: News and Events

Two questions emerge after (hypothetically) acceding the need to privatize

ownership:
- What kinds of “things” should fall under the ability to be owned?
Novel Claims
- How should property rights be distributed?

This is where justificatory theories come into play

International News Facts:
Service (INS) v - INS and AP are direct competitors in news business
Associated Press - INS allegedly copies AP’s uncopyrighted stories from bulletin
(AP) boards/early editions in eastern US
(1918) US - INS then, allegedly, transmits them west via telegraph
“Quasi-property of - This allows INS to publish the stories gathered by AP at the same time,
news” or even before  harms AP’s business
Issues:
- Concrete:
o Should INS be restrained from appropriating news from AP
bulletin boards? (YES)
- Legal:
o Is there property in news? (YES  “quasi-property”)
 o Does it survive publication? (YES)
Ratio:
- The news is quasi-property as between competing news agencies
- This quasi-property survives publication
Analysis:
- Is it property?
o Companies deserve “compensation for the cost of gathering
and distributing” the news (this includes appropriate profit to
incentivize the behavior)
o Gathering the news costs “enterprise, organization, skill,
labor, and money”
- Does it survive publication?
o Value in the news exists “while it is fresh”
o Fault in reasoning that publication = abandonment “lies in
applying … the right of the complainant as against the public,
instead of … competitors … as between themselves”
o Defendant is trying to “reap where it has not sown”
- Unfair competition?
o Defendant trying to “divert a material portion of the profit
from those who have earne it to those who have not”

DISSENT = essentialist interpretation (property must = right to exclude)

Facts:
- P operates a racecourse in Adelaide, erecting a wall to block the view
and charges admission
- Neighbouring landowner (D) builds a tower overlooking racecourse
- Commentator (on D’s tower) broadcasts live radio reports / odds
- Racecourse loses business because they don’t need to be there
Issue:
- (Concrete) Should the defendants be enjoined? (NO)
Victoria Park Racing - (Legal) Does the defendants’ conduct = nuisance (NO)
and Rec Grounds Ltd - (Legal) Does plaintiff have a property right in the spectacle? (NO)
v Taylor Ratio:
(1937) HCA - “A ‘spectacle’ cannot be ‘owned’ in any ordinary sense of the word”
“Platform Broadcast - English law = “rights of occupier do not include freedom from view”
of Racing Track” - “Any person is entitled to look over the plaintiff’s fences and to see
what goes on in the plaintiff’s land … the law cannot by an injunction
(p 49) in effect erect fences which the plaintiff is not prepared to provide”
Analysis:
- Latham CJ
o Creating quasi-property in spectacle would prevent people
“from opening their eyes and seeing something and then
describing what they see”
o P should just build a bigger fence
- Dixon J
o No legally recognized category
Reconciling INS and - Different legal systems
 - Direct competition is different
- Free-riding:
Victoria Park
o INS free-rides AP; not the case in Victoria Racing
- Severity of interference
- Chicago Cubs sue adjacent landowners who sell seats on rooftops
overlooking Wrigley Field, say “free ride is over”
Wrigley Field - Lawsuit settled out of court
- Rooftop owners agreed to pay 17% of gross revenue to Cubs
(2002) - Handful of holdouts remain; periodically threatened with litigation
- Cubs promote authorized rooftops (“Rooftop Partners”) on their
website

Novel Property Claims: The Human Body

Facts:
- Moore diagnosed with hairy cell leukemia
- Doctors remove his spleen / samples of tissue/fluids as part of treat
- Find out his tissue contains high lvls of valuable proteins
- They develop and patent a profitable cell line from them
- D’s got P’s consent to surgery/samples BUT didn’t disclose plans for
research or commercial exploitation
- Deciding these issues on a preliminary motion to dismiss
Issue:
- Is there a cause of action for lack of informed consent and breach of
Moore v Regents of fiduciary duty? (YES)
the University of - Is there a cause of action for conversion? (NO)
California Analysis:
(1990) Cal SC - Reasoning follows precedent  uniqueness  control 
“Control Over distinctiveness
Billion-Dollar excised - Precedent:
tissue” o Majority: No, no precedent.
o Dissent: No, but that doesn’t mean a claim doesn’t exist.
- Control:
o Majority: No control of excised cells after removal.
o Dissent: Lack of control should = reduced rights only
- Uniqueness:
o Majority: No uniqueness in Moore’s cells
o Dissent: Cells had unique properties which made them
commercially viable.
Key point: Connections to principles justifying property (Majority = economic
incentives and labour theory)

Don’t forget about Henrietta Lacks!!

Canadian Cases in Lesbian Couple

 - Gets frozen sperm from US
- Split up
- 1 gets new partner and wants to use leftover sperm
- Ex-partner says no way:
Reproductive - Courts say:
Technology o Common-law, historically, does not recognize property rights
(commodification of
o This case signals a re-thinking
gametes/embryos,
o Right to use = rights of ownership
or surrogacy =
o Everyone has already treated them as property
illegal)
Sperm Bank Malfunction
- Men deposit sperm (cancer patients fearing loss of fertility)
- Freezer malfunctions; sperm destroyed
- There was an exculpatory clause in the contract
Restrictions on the Recognition of New Property Interests

- Numerus clausus (“the number is closed”)

- Courts are extremely reluctant to create new forms
- However, the door is not completely closed
- Why reluctant
Restrictions on
o Economic efficiency: unlimited categories would exponentially
Novel Claims
increase transaction costs
o Precautionary: Hard to reverse once created  don’t want to
make a mistake and turn something into property that
shouldn’t be

Sources of Property Law

- How do they conceptualize and organize relationships among people,

land and resources?
- John Borrows’ piece:
Indigenous Legal o Asserts that oral history = law, not simply stories
Traditions (Delgamuukw trial judge found elders’ oral histories
unreliable)
o Some similarities to English-based common law
o Asks us to reflect on the unsaid; (re)structuring relations
Nanabush v Deer, Facts:
Wolf et al - Nanabush tricks Deer, through false compliments, smears stinging
berries into his eyes
- Kills/roasts Deer
- Nanabush gets stuck in tree attempting to break off an annoying
branch
- Reveals location of meat to passing wolf pack, which devours it
- Nanabush changes into snake  eats dears brain  stuck in skull
- Stumbles around until he trips and breaks it off
 Issue:
- Did Nanabush violate the balance required by law between humans
and their relations? (YES)
Ratio:
- Disregarding the promise of respect embodied in the treaty between
the Anishinabek and the deer
Analysis:
- Crow, Owl, Deer et al v Anishinabek
- Rest of the Forest v Birch Tree
- Legal principle: honour & respect your promises, relations and
environments or natural resources will eventually disappear

Maitland, The Constitutional History of Englandi

- “This personal relationship is inseparably involved in a proprietary
relation, the tenure of land – the man holds of the lord, the man’s
service is a burden on the land, the lord has important rights in the
land, and (we may say) the full ownership of the land is split between
man and lord”
Free tenure:
- Lord granted land to vassal  vassal performed services
Feudalism
o Security; pomp and splendour; subsistence (only form introed
into Canada)
- Escheat (back to Lord if tenant died without heir); relief (death duties
= 1 yr income); forfeiture (if tenant felon); wardship (during minor)
Unfree Tenures:
- Belonged to the manor
- Near-slavery + taxes = ostensible protection
- Never introduced in Canada

Decline of Feudalism - Direct feudal obligations were increasingly being replaced with cash
rents and outright sales of land
 - The statute Quia Emptores (1290) prevented tenants from
transferring their lands to others by subinfeudation
o Instead, they had to do so by substitution
- This law, combined with escheats and forfeitures flattened the feudal
pyramid over time
Statute of Westminster
- Essentially, can’t create strings of relationships between lord and
vassal for same piece of land anymore
- Doctrine of Tenure remains foundation of Canadian land law but has
lost most of its practical significance
- Flowing from Doctrine of Tenure:
Relevant Aspects of
o Underlying Crown title to all land (esp relevant to Indigenous
Feudal Systems re:
land rights)
Canada
o Substitution is the sole way to transfer interests in land (Quia
Emptores)
o Vestiges of escheat remain in inheritance statutes
Wills, Estates and Succession Act, SCB 2009, c 13, Escheat Act, RSBC 1996, c 120, s 1.
s 23(2) - “If land in {BC} escheats to the
- “[If a person dies without a will and government because the person last
without a lawful heir as specified in the seised or entitled to it dies intestate and
legislation], the whole intestate estate without lawful heirs … the Attorney
passes to the government” General may take possession of the land
in the name of the government”.

Rules of reception:
- Conquered or ceded territories retained pre-existing legal regimes
Property Law until altered by British sovereign
Derived from English o Thus Quebec retains key elements of civil law
Common-Law o Indigenous peoples thought of as barbarians & not included
- Settled territories: In theory, English statutes and common law were
received insofar as they were appropriate
- 1858
- Law and Equity Act “… the Civil and Criminal Laws of England, as they
existed on November 19, 1858, so far as they are not from local
Reception of English circumstances inapplicable, are in force in” BC
Law in BC - Three Qs to ask:
o Was the law in question still valid in England in 1858??
o Was it applicable to local circumstances in BC of that time?
o Any newer legislation to invalidate the law?
CSF - CSF current litigation alleging that, essentially, francophone students
are discriminated against in contravention of minority rights in
Charter
- CSF presented case/exhibits in French only
o Crown argued that exhibits must be in English
o Basis for ^ position = 1731 English Act that became part of BC
law in 1858
 o SCC ruled (majority) that this law still applied

Protections for Private Property

- Unlike US 5th Amendment, private property rights excluded from

Charter
o Indirect protections: s 8 (search & seizure); s 2 (freedom of
expression (advertising, Sunday closing)
o Limited by s 15 right to equality (anti-discrimination)
o State power limited by s 2 (picketing  lessened right to
control public property)
o S 35 protects “existing aboriginal and treaty rights”
Canadian - Bill of Rights (1960): protects “the right of the individual to …
Protections for enjoyment of property, and the right not to be deprived thereof
Private Property except by due process of law”
- Expropriation Statutes: provides due process and compensation
when government takes away title to privately owned land
- Overriding ^ statutory protection:
o Common-law presumption: “unless the words of a statute so
demand, a statute is not to be construed so as to take away
the property of a subject without compensation”
o But express (explicit) legislative confiscation is permissible,
even without due process

- When the state regulates associated properties so restrictively that all

that is left is “bare title”  in effect “taking” the property.
- USA
Regulatory Takings o Much more robust jurisprudence
o 5th Amend = “no person shall … be deprived of … property,
(De Facto without due process of law; nor shall private property be
Expropriation) taken for public use, without just compensation”
- Canada
o Very little case law on “how much state interference is too
much”
US Cases
Pennsylvania Coal v Facts:
Mahon - Homeowners in Scranton PA sue to prevent Penn Coal from causing
(1922) USSC their homes to subside due to coal mining
- Penn Coal had originally been the grantee to the land in this area, and
then subsequently sold the land to other private indiv’s BUT reserved
the subsurface mineral rights AND had a clause limiting liability due to
subsidence
- Penn State passed the Kohler Act
o Forbade coal companies from causing subsidence under
 residences
Majority (Holmes J)
- “What makes the right to mine coal valuable is that it can be
exercised with profit. To make it commercially impracticable to mine
coal has very nearly the same effect … as appropriating or destroying
it”
- SO  “while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking”
Dissent (Brandeis J)
- “… a restriction imposed to protect the public health, safety or morals
from dangers threatened is not a taking”
- BECAUSE the property remains in the possession of its owner, the
state does not appropriate it or make any use of it. The state merely
prevents the owner from making a use which interferes with
paramount rights of the public.
- This ^^^ similar to Canadian finding  more leeway for government
action
Facts:
- Lucas purchases two beachfront in SC (1986) for development
- In 1988, before any dev’l, S passes an act that bars him from building
any permanent structures on the lot
Ratio:
Lucas v SC Coastal
- Two types of per se regulatory takings:
Council
o Physical, permanent, invasion of land
(1992) USSC
o Denial of all economically beneficial or productive use of
land
Analysis:
- An economic justification  property for profit / economic
exploitation  similar to Penn Coal
Canada Cases
Facts:
- P’s own beach lots in NS
- NS designates land as “protected beach” and refuses permission to
build because of potential damage to dunes
- Owners claim these actions = a taking
Issue:
- Was there a de facto expropriation? (NO)
Ratio:
Mariner Real Estate
- Legislation “may very significantly restrict an owner’s enjoyment of
Ltd v Nova Scotia
private land” without it constituting a taking
- Courts may order compensation for such restriction only where
authorized to do so
- Test for de facto expropriation:
o Was there an acquisition of a beneficial interest?
o Was there the removal of “all reasonable uses of the
property”?
Analysis:
 - “reasonable uses” assessed by looking at “the land’s potential highest
and best use, but [also] … to the nature of the land and the range of
reasonable uses to which it has actually been put”
o There were more options for building there that were open to
the developer (ie: stilt homes)
- Enhanced value of nearby public lands (as a result of the legislation
under question) is not enough to signal that the Crown has acquired
an interest in land.
- R v Tener (1985) SCC
o Tener held a 1937 Crown grant of title to subsurface minerals
and right to use surface land to extract them
o In ’73 BC included the land in a new provincial park in which
mining was prohibited, and denied permit to authorize
o Distinguished from Mariner: The denial of the park use
permit amounted to taking back that which was granted in
1937, and thus the loss of potential profit that was rightly his.
Facts:
- Years of inconclusive discussions about the future of a disused CPR
rail line in Vancouver
- City passes bylaw req the line to be used only as a public thoroughfare
for transportation or greenways
- This destroyed its commercial redevelopment potential
o Narrow strip but wide enough for 1-2 bldgs
CPR v Vancouver Ratio:
(2006) SCC - Two-part test (upheld Mariner)
o Did the city in effect acquire an interest in the land?
o Did the bylaw remove all reasonable uses of the land?
Analysis:
- The city didn’t acquire “an interest” (aka a park), only assurance that
the land would be used in some accordance with the city’s vision/plan
o Zoning as opposed to expropriation
- CPR hadn’t explored all its options in terms of reasonable uses

Chapter 11 of NAFTA created new rights for NAFTA investors in other NAFTA
countries
- Article 1110: No Party shall expropriate an investment of an investor
of another Party or take a measure tantamount to expropriation …
International
except for a public process … with due process, and upon payment of
Protections for
compensation
Property
Investor-State Dispute Settlement (ISDS)
- Aggrieved investor may sue host for compensation before
international arbitral tribunal made up of arbitrators selected and
paid by the parties
Metalclad Facts:
- US firm bought a Mexican toxic waste facility with Mexican
government encouragement
 - City refused construction permit
- State governor later designated entire area as ecological preserve
Analysis:
- Article 1110 includes “interference with the use of property which has
the effect of depriving the owner, in whole or in significant part, the
use or reasonably-to-be-expected benefit of property even if not
necessarily to the obvious benefit of the host state”
- City’s denial of permit; efforts to block dump in courts; federal gov’ts
failure to ensure a transparent and predictable framework amounted
to indirect expropriation by effective depriving Metalclad of right to
operate
- State’s ecological decree = permanent barring of operation ( This
was upheld in a Canadian court)
- Metalclad remains only successful 1110 claim, but dozens have been
filed
- 2005 Methanex decision quelled some fears
o Cdn methanol manuf. claimed California ban of toxic gas
additive was indirect expropriation
Post Metalclad o Shot down because: (1) non-discriminatory regulation; (2) for
a public purpose; and (3) enacted in accordance with due
process.
- Now Cdn investment treatings (ie: Canada-Peru BIT, 2011) contain
Methanex caveats; stating those three things in some order not
constituting expropriation
- Affirms parties’ right to regulate for legitimate policy objectives like
health, environment
Canada-EU - Includes expropriation clause like Canada-Peru, but:
Comprehensive o Defines indirect expropriation as substantially depriving
Economic & Trade investor of fundamental attributes of property (broadens
Agreement (CETU) scope)
- Replaces investor-state arbitration with permanent, independent
tribunal with appeal chamber

Airspace and Subsurface (Vertical) Boundaries

Where and how to draw the line between what is mine and what is not
- Physical boundaries of land ownership
Boundaries o Three dimensions: lateral, vertical (air and subsurface)
- Boundary between realty and chattels (or fixtures and chattels)
- Limits of intangible property rights
Vertical Boundaries - Land transfer docs usually recite lateral dimensions
(Airspace) - Air and subsurface rights are rarely mentioned in title documents
Didow v Alberta Facts:
Power Ltd - Appellant (Didow) owns some farmland
(1988) ABCA - Alberta Power erects power lines on the road allowance
 - Cross-arms and wires intrude 2m into airspace 15m above Didow’s
- Did sues for trespass
Issue:
- Does the powerline stuff constitute a trespass?
- Does the appellant hold possession (or right of possession) to airspace
above land?
Ratio:
- “A landowner is entitled to freedom from permanent structures
which in any way impinge upon the actual or potential use and
enjoyment of his land”
Analysis:
- 2 main types of jurisprudence on airspace
o (1) Permanent structural intrusions or projections into low
level airspace  direct invasion by permanent artificial
projection = trespass
o (2) Transient invasion into AS at height not likely to interfere
(ie. airplanes)  only constitute trespass if they actually
interfere with normal use (and most don’t)
- Cujus est solum, ejus est usque ad coelum et ad infernos  “He who
owns the surface also owns all the way to the heavens and to hell”
o This used to be the maxim the legal principle flowed from
o Not not generally accepted (far too broad)
o Generally only if it interferes with “ordinary, natural, or
proper use of the land”

Subsurface
Edwards v Sims Facts:
(1929) KY CA - Edwards discovers an entrance to a huge cave system on his land
- The cave apparently (1/3) extends below onto lands owned by Lee
- Cave is inaccessible from Lee’s land
- Lee filed trespass suit against Edwards after Edwards dev’l it into a
tourist attraction
- The trial judge Sims seeks to compel Edwards to allow a survey of the
cave
Issue:
- Should the courts order a survey to understand where cave is? (YES)
Analysis:
- Stanley J (for Majority)
o Invokes cujus est solum maxim
o Closet case is mine case  mine’s functionally equivalent to a
cave
o Edwards = mine owner
o Past cases have forced mine owners to allow surveys
- Logan J (Dissent)
o Cave belongs to whoever owns its entrance
o Why?  Discovery/possession; labour; unjust enrichment
 o Lee has no access therefor no use/exploitative prospects

- If transactions are costless, the initial assignment of a property right

will not affect the ultimate use of the property
- Kind of goes against legal theories of the use of property rights
o You need property rights for the efficient economic use of
property
- “If bargaining is frictionless, rational actors will bargain to a result that
puts the resource in the hands of the party who values it the most”
o Property rules have distributive consequences (who pays
whom & how much), but do not determine the allocation
The Coase Theorem - Problems:
o This only holds if bargaining is completely costless
o Things that make this ^ rare: transaction costs; bilateral
monopolies; holdouts and other irrational behavior; free-
riding
o Heuristics (common cognitive biases)  anchoring effect
(who says number first ends up closer at end of negotiation);
and endowment effect (pay less to acquire something new
than they are will to accept to part with same item they
already own)

Lateral Boundaries

The Right of Support - Careful of noting jurisdiction / fact elements in these cases
(Subsidence) - Byrne v Judd is law in Canada  Blewman may be persuasive
Blewman v Facts:
Wilkinson - W owns land, plans on subdividing
(1979) NZ CA - Cuts right of way for access to lot 7  does so with expert advice /
contracting / engineering (no negligence)
- Sells lot 7, house built, bank erodes, B’s do nothing, they sue
- Excavation  Subdivision  Erosion
Issue:
- Can the rule from Bryne hold if the person excavating owned all the
land at the date of excavation but has since subdivided it? (NO)
Ratio:
- Subdividing owner is not under “a strict non-contractual duty to a
subsequent owner of a section on which subsidence occurs because
of [an] excavation” when:
o It is “manifest that sections in a subdivision have been created
by excavation”; AND,
o Where the owner wasn’t negligent
Analysis:
- Shouldn’t extend Byrne principle to this situation because:
 o Terrain in NZ would mean strict-liability in situations like this
case would result in thousands of potential suits
o Law of negligence has developed since Byrne to create the
kind of protections for buyers
- “In a typical Byrne v Judd type of case if a neighbour has excavated, a
purchaser may buy land manifestly threatened by the excavation
Byrne v Judd (making whatever use he can of that risk in his negotiations with the
vendor) and then sue the excavator when a subsidence occurs –
“NZ but represents subject only to the plaintiff’s duty to act reasonably to mitigate his
the law in Can” damages”
- Strict liability  if excavation interferes w/ surface land, landowner
has action against original excavator
- Landowner mined his own land  then sold the surface only
- Buyer knew nothing of the mines
Petrofina Canada - Land subsides  ONCA holds that there is the potential for ability to
Ltd v Moneta recover damages here
Porcupine Mines Ltd - Court didn’t have to really decide on ^ because:
(1969) ONCA o P’s plant and buses may have caused collapse
o “Heads of damages claimed were irrecoverable”
- More about vertical boundaries than lateral
What language is sufficient to find that the right of support has been
released?
- Presumption = subsurface activity is “subject to the condition that its
exercise shall not prejudice the surface owner’s natural right to
Fuller v Garneau support”
(1921) SCC - To rebut this you need “express terms or … necessary implication”
o A necessary implication would be express mention that there
was a mine, and that the mine would be worked, and that the
working of that mine necessarily implied subsidence of the
surface.

Hierarchy for deciding land disputes:

1) Natural boundaries
Land Bounded by
2) “Lines actually run and corners actually marked”  man-made marks
Land
3) Man-made markings on adjoining properties
4) Actual distances and measurements

Water Boundaries Robertson v Wallace (2000) Alta QB (p. 220)

- Accretion:
o Must be “gradual and imperceptible”
o Title to accreted lands shifts to follow new natural boundaries
o Professor Sax = there is a “strong presumption” in favor of
accretion
- Avulsion:
o Substantial & recognizable change in boundary
 o Boundary is set where it was prior to avulsion
Eliason v Alberta
- Once lake dried (gradual and imperceptible), landowner owns bed of
lake
Ad medium filum aquae (“To the centre thread of the stream”)
- Not adopted into common law of BC (Nikal)
Rules for Water Boundaries:
(1) Non-tidal + non-navigable rivers: ownership to middle of river (ad
medium)
(2) Tidal and navigable bodies of water: ownership to ordinary high-water
mark; below that crown owns
(3) Tidal but non-navigable or non-tidal but navigable: navigability takes
precedent
Facts:
- Indigenous man fishing at Moricetown gorge
- Both sides of river = reserve
- Charged with fishing w/o licence
- Gorge is non-navigable (but rest of Bulkley River is)
Analysis:
R v Nikal - Test for navigability:
(1996) SCC o Consider the entire length of the river
o Relies on Keewatin Power Co (1906)  no clear indication of
where, exactly, the line between non-navigable / navigable
lies.
- There is a presumption of fishery rights tied to possession of bed of
river (a la ad medium)  UNLESS this right is severed from title (which
is what happened in Canada  Crown retains title to fishery)

Fixtures vs Chattels

- When chattel becomes fixture  title to that item subsumed into

realty
Fixtures vs Chattels
- Chattel  personal possession easily removed from property
- Fixture  item in relatively fixed position (more than body weight)
La Salle Recreations Facts:
Ltd v Canadian - Contractor installed wall-to-wall carpeting on a conditional sales
Camdex contract
Investments Ltd - The contract was registered in the company’s register, but not the
(1969) BCCA land titles office
“Wall-to-wall - Hotel went out of business
carpeting” - Contractor and mortagee both claim carpet
Issue:
- Is the carpet chattel (contractor’s prop) or fixture (hotel’s)? (Fixture)
Analysis:
- Chattel / Fixture 4-part test (from Stack v Eaton)
 o (1) Things attached “by their own weight” presumed = chattel
o (2) Things attached “only slightly” are fixtures unless the
“circumstances” show they were meant to = chattel
o (3) Circumstances that rebut the first two presumptions:
things that show “the degree of annexation [affixedness] and
object [as a purpose or goal] of such annexation, which are
patent for all to see”  objective test
o (4) Intention of the person affixing article (but this is an
objective test  what would a reasonable person infer?)
- Degree of annexation:
o The stronger the attachment, the greater the presumption =
fixture. Can it be removed w/o causing material injury?
- Object/purpose of annexation:
o Uses Haggert v Brampton reasoning.
- Carpet seen to be “permanent” because it was intended to be there
“so long as it serves its purpose” (also from Haggert)
- If purpose of affixing chattels is to improve freehold, thing becomes
part of realty even if only slightly affixed
Haggert v Brampton
- If purpose of affixation of chattels is better enjoyment of them as
chattel, then affixation does not make them part of realty
- Bowling alleys held in place by small number of nuts and bolts
- Reversed w/o significant damage
Re Davis
- And the purpose of affixing alleys was for better use of them as
bowling alleys  NOT part of realty
- Chattels place by tenant for purposes of trade, ornament or domestic
Frank George Island
convenience become part of freehold
Investments Ltd v
- Tenants may remove fixtures and they become chattels as long as no
Ocean Farmers Ltd
serious injury to freehold
- Tenant’s right to remove leasehold improvements must be exercised
Carabid v Offman
before term expires

Facts:
- Diamond installed used car dealership signs on realty under a contract
Diamond Neon with the landowner’s tenant Uptown Motors
(Manufacturing) Ltd - Contract said signs were DN’s property, not fixtures
v Toronto-Dominion - “Diamond” was printed on the signs
Realty Co - DN left the signs after Uptown vacated, hoping to lease them to a new
(1976) BCCA dealer
- A new owner purchased the land without notice of DN’s interest and
sold the signs and pole
Analysis (Majority)
- Contract between DN and dealer not a valid concern because TD did
not know / was not a party to the contract.
- Notice of claim could not affect signs b/c property already sold
o Signs became fixtures when TD became owners (court doesn’t
say when, exactly, DN lost ownership)
 o Leaving signs behind implies intention to leave as fixtures
- Doesn’t think having “Diamond” on the sign sufficiently conveyed to a
reasonable observer signs status as chattel
Dissent:
- “If the message on the sign is specific to that particular occupant’s
business, then it is intended to go with that business when it leaves”
- Sign w/ name presumed chattel

Intangible Property Rights

Monsanto Canada Inc Facts:

v Schmeiser - Monsanto patented canola that was genetically modified to be
(2004) SCC resistant to Round Up
- D never purchased this strain, nor obtained a licence to plant it
- Tests showed that 95-85% of his crop was Monsanto patented kind
- Claimed GM canola found its own way onto his land
Issue:
- Was there infringement of Monsanto’s patent? (YES)
Ratio:
- “The law holds that a defendant infringes a patent when the
defendant manufactures, seeks to use, or uses a patented part that
is contained within something that is not patented, provided the
patented part is significant or important”
Analysis:
- What is a patent?
o Time-limited, legally protected exclusive right to make, use
and sell an invention in return for public disclosure of its
secrets
o Patent Act, RSC, 1985 s 42 “ … the exclusive right, privilege
and liberty of making, constructing and using the invention”
(1) Did Schmeiser use the invention?
- “Use” has a statutory definition in Patent Act
Three-step analysis:
- (1) Purposive Analysis:
o S 42 = “full enjoyment of the monopoly granted to the
patentee”  Does the act infringe on this “full enjoyment”?
- (2) Contextual Analysis:
o Commercial benefit derived from invention belongs to the
patent holder.  Did the act result in commercial benefit?
- (3) Case Law Analysis:
o What do the decided cases tell us?  Harvard Mouse
rejected because that was about patenting a mammal, this
about a gene.
Counter-arguments:
- Infringement only = in lab (use of isolated genes/cells)
 o Rejected by majority; accepted by dissent
o Relies on difference between gene and modified plant
- Only infringement when defendant takes commercial advantage of
the invention’s specific utility.
o Ie: He didn’t use Roundup, so he never took advantage of
the fact that it was Roundup Ready.
o Rejected by majority  “fire extinguisher argument” –
doesn’t matter if it’s unused, potential is enough
- Innocent Bystander
o Rejected by majority; accepted by dissent
o Propagation of RR canola without a licence is not
infringement because plants grow themselves  rejection
relies upon trial judge’s findings = deliberate action
- Stray bull
o Rejected by majority
o Not infringement to keep offspring of organisms that stray
onto your land

The Concept of Possession

“Possession is good against the whole world except the person who can
shew good title” Asher v Whitlock (Eng QB 1865)
“A person in possession of land in the assumed character of an owner and
exercising peaceably the ordinary rights of ownership has a perfectly good
title against all the world but the rightful owner” Perry v Clissold (1907) Aust
Possession
- Possession can create property rights (first possession; discovery)
- Possession gives rise to a presumption of title, subject to another
demonstrating a better claim  relativity of title
- Possession can extinguish true owner’s rights with the passage of
time  adverse possession
Facts:
- Expensive homerun ball hit
- P’s glove made contact (partial catch)  mob attacked  P lost
control of ball  H picked up ball  P & H both claim ball
- [H acquired unequivocal dominion + control  P’s pre-possessory
right clouds title  equitable division]
Popov v Hayashi Issue:
(2002) Cal SC - Did P achieve “possession or the right to possession”? (YES, partial)
“Valuable Baseball” Criteria for possession:
(1) Object must be lost or abandoned
(2) Intention to control to exclusion of others (animus possidendi)
(3) Actual physical control
a. If 1 and 2 are met, but 3 prevented by illegal act, courts may
find pre-possessory right
Pre-possessory Interest:
 - Significant but incomplete steps [for] a piece of abandoned prop
- Interrupted by the unlawful acts of others
This can found a cause of action  doesn’t guarantee the outcome
Equitable Division
- More than one party has valid claim
- “… recognize an undivided interest in the property in proportion to
the strength of the claim”
Gray’s Rule: momentum of ball & person must stop. [Ball loose prior to
momentum coming to full stop = no possession]
Adverse Possession

Abolished in BC in 1975 (via Limitation Act)

- So have to show 20 continuous years possession (prior to 1975) for
private or 60 against the Crown (either ’75 or ’70 due to Land Act)
Possession must be (test from Mowatt):
- Actual (intent to posses + phys poss)
- Open and notorious
- Exclusive
- Peaceful
Adverse Possession
- Without permission
- Continuous for the applicable period  “tacking” is allowed
- Inconsistent with true owner’s intended use? Not law in BC
(Mowatt)
Pros: punish neglect; encourage Cons: Ex turpi causa non oritur actio
productive use; protect settled ("from a dishonorable cause an
expectations of long-term possessors action does not arise")  Don’t
reward bad behavior
Nelson (City) v Facts:
Mowatt - M’s claim title to lot of land in Nelson
(2017) SCC - Claim rests on ostensible “continuous adverse possession … by three
“Disputed Lot” families in succession”
o Coopers occupy disputed lot from 1909  (at least) 1916
o Unclear if any of Coopers remain after 1916 (KEY)
o Gaucher’s move in from 1920-1931
Ratio:
- Inconsistent use requirement not applicable in BC
- Possess is list from above
Analysis:
- Inconsistent Use Test (Not in BC)  Ont, NS, persuasive NL
o From Leigh v Jack (!879) : “Acts must be done which are
inconsistent with his enjoyment of the soil for the purposes
for which he intended to use it”
o Keefer v Arillott (1976) ONCA: K’s uses strip of neigh land for
driveway/parking/skating rink  no AP b/c use not
inconsistent
o Pye v Graham (UK) : G pastures land 15 yrs after lease
 expires (G attempts to renew sev times)  court says
inconsistent use test doesn’t matter

Finders

Trachuk v Olinek Facts:

(1995) ABQB - Marathon owns a ¼ section in AB
- Amoco holds a surface lease over 4 acres for a gas well
- Trachuk has an “agricultural use lease” over the remainder
- With M & A’s consent, T builds a fence around the well, entirely on
the surface lease land
- Signalta has an easement (right of way) over part of the ¼ section
for a pipeline and contracts with Olinek to disconnect its pipeline
from the well
- When digging inside fenced area, O and 3 subcontractors unearth a
bag of money around 18-24” underground
- O and subcontractors (as group) claim  T claims
Trachuk’s Bid:
- Did he have legal or de facto possession of the land?
 No  built fence to keep himself out
- Did he “manifest an intention to exercise control” over the place
and anything found on or in it?
 First look to the reason/purpose behind building the fence
 Built to keep cattle away from the well
 Secondly, Trachuk never purported to keep any of the
gas/oil workers out of the area (and he couldn’t have legally
done so anyway)
Analysis:
- Why didn’t the money go to Amoco Canada Resources?
 May have taken into account the cost of legal services (cost
more than it’s worth)
 Plus, maybe take into account ongoing relationships with
contractors (not worth alienating contractors)
- The landowner (Marathon)?
 You part with the right to possession when you lease out the
land.
- The easement holder (Signalta)
 Potential claim as the employers (British Airways)
- Different types of easements:
 This one is called a right-of-way (non-possessory interest)
 - The true owner of the money?
 Will prevail against all, UNLESS:
 Prove that they had abandoned the object, or;
 Statute of limitations (recovery time expires, and true
owner’s right to possession is extinguished)
- The Province?
 Is the money treasure trove?
 An ancient doctrine that applies to gold (specifically)

Facts:
- Parker finds gold necklace in airline lounge
- Airline claims possession b/c chattel on their land
Ratio:
- Attached or buried = goes to occupier over finder
- Loose chattel = occupier must show manifest intention to exercise
control over the premises and anything on or in it
Rights and Obligations of the Finder:
1) No rights unless object was abandoned or lost and finder takes
Parker v British
possession
Airways
2) Limited or no rights if dishonest or trespassing
(1982) Eng CA
3) Has rights against all but true owner, one claiming through TO, or
one with a prior subsisting right (occupier)
4) Finds on behalf of master or principle if in course of employer
5) Must care for thing & take reasonable steps to alert owner
Rights and Liabilities of Occupier:
1) Has better right than finder to chattels “in or attached to” land
2) Loose chattel  only better than finder if = manifest intention
3) For (2), occupier must take reasonable steps to alert owner
4) Same apply to occupiers of chattels

The occupier’s intention?

- Airways case = occupier’s intention only becomes relevant in the
case of loose objects
- Trachuk case = says the occupier’s intention applies both to loose
objects and affixed objects.

In BC  No clear authority, must weigh choices

Weighing the
- Trachuk is Canadian, more recent, from a jurisdiction that is very
Difference between
close to BC
Trachuk and Parker
 But is a trial level decision, some internal inconsistencies
- British Airways is recognized as the authoritative case for finders;
recognized throughout common law; from an appellate level court
 But not Canadian, and older.
- Could also lay out policy
 Occupier’s should be asserting control (use of resources)
 Don’t want people running around punching holes in drywall
 - Boy finds tin of cash under porch while trespassing on private
property; neither landowner nor true owner claim it; boy demands
it, police refuse (Bird v Fort Frances, ONHC 1949)
- Man confesses to stealing large amount of cash but is never
charged, demands return of cash, Crown refuses (Baird v BC, BCCA
1992)
Naughty Friends - Police seize bag containing $287,000 from behind driver’s seat
during routine traffic stop. Driver denies knowledge but next day
claims to be holding it for offshore investors, police refuse to return
it (Canada v Brock, BCCA 1993)
- Off-duty Vancouver constable Mel Millas finds $937,000 cash in a
gym bag in a trash can in a public park  gets to keep it (Millas v BC,
BC Prov Ct 1999)
- Perry and Gregory scanned a PEI farm with metal detectors with
owner’s permission; P got signal, began to dig, asked G to verify. G
verified signal, dug more while P moved away to avoid
electromagnetic interference. G unearthed 200 year old military
Joint Finders artifact. Who owns it? (Perry v Gregory, PEISCTD 2003)
 Court turns to an argument based on possession/agency 
Perry asked Gregory to step in (which almost makes Gregory
an agent of Perry’s). Also looked to the pre-existing
arrangement.

Gifts

Nolan v Nolan Facts:

- Jinx Nolan, daughter of deceased artist Sidney Nolan, claimes Sidney
gave 3 valuable paintings to his wife Cynthia, Jinx’s mother,
sometime before Cynthia’s death in 1976
3 methods for making a valid gift of a chose in possession inter vivos
(between 2 living people)
1) Deed  document under seal
2) Declaration of Trust (physical delivery not needed)
3) Delivery
Three Elements of Delivery
1) Donative intent  an intention to make a gift, usually expressed by
words of present gift
2) Intention on the part of the donee to accept the gift
3) Delivery
Words of Present Gift
- “Show an intention to give over property to another, and not to
retain it in the donor’s hands for any purpose, fiduciary or
otherwise”
- Potentially shown through body language
 - Can be made prior/concurrent/after delivery
Delivery
- “The legal act essential to complete the gift … [i]t transfers both
possession and ownership of the chattel to the donee”
- Two kinds:
 (1) Actual  physical
 (2) Constructive  when the donee already is in possession
OR when physical delivery is impractical you must “delivery
the means of access and control” (a key, for example)
- Symbolic delivery will not be sufficient to make a gift (picture of
organ)
Analysis:
- Onus of proof is always on person alleging that a gift was made
- Problem in this case  everyone dead
 Approach claims of gift “with caution and suspicion”
-

Common Law Estates

Doctrine of Tenure
- Allowed large numbers of individuals to hold interests in land
concurrently
- Determined the quality of interest (services, rank)

Doctrine of Estates
Estates in Common
- Looks to a single piece of land
Law
- Allowed numerous people to hold interests in same parcel of land
consecutively
- Determines the quantity (duration) of interest

“An estate in the land is a time in the land … he who has a fee-simple in land
has … the land for time without end” Walsingham’s Case (1573)
Fee Simple
- Potentially unlimited duration
- Fee-simple = good because unimpeded transferability is good for
economy
Fee Tail
Freehold Estates
- Doesn’t really exist in Canada
Life estate
- Exists almost always as an equitable interest, behind a trust
- So long as the grantee is alive
- Is transferable BUT then = pur autre vie  still for life of ori grantee
Fee Simple - Traditionally, fee simple was created by the words “to A and his/her
heirs”
- To “grant” or to “convey” is used between living parties
 - To “devise” is to give land through a will
- Ellickson’s Property in Land
 Heavy on economic utility argument
 Fee simple = good  low transaction cost device
 Fee simple = infinite  owner looks long-term (doesn’t
exploit)
Facts:
- Beneficiaries of a will convey land to the executors, “their successors
and assigns” in trust to sell the land and pay to beneficiaries
- Executors sell land to Thomases, whose lawyer says “all good”
- Thomases later conclude executors lacked fee simple (no “to A and
his heirs” language), negotiate quit claim conveyances and sue
lawyer who said “all good”
Ratio:
- “The requirement of words of limitation in a grant can be supplied
by the clear intention in the deed to pass the fee simple interest”
- “The instrument will be construed as a whole in order to ascertain
the true meaning of its several clauses” (Wheeler v Wheeler and
Wheeler’s Estate (1979) NB)
Analysis:
Thomas v Murphy - Rule of law = strict language requirement for inter vivos grant “To A
(1990) NBQB and her/his heirs”  two living people
“Magic Words” - To devise a FS, will only had to indicate intention clearly
- Property Act of NB (p. 362)
 “It is sufficient if the words ‘in fee simple’ are used”
- Conveyancing and Law of Property Act of Ontario
 (p. 364) “… it is not necessary to use the word ‘heirs’ … it is
sufficient to use the words ‘in fee simple’ … any other words
sufficiently indicating” the intention
 “Where no words of limitation are used the conveyance
passes all the estate…”  opposite of common-law rule (in
this case, if no words of limitation are used you convey the
entirety of the estate)
 This only applies so long as there are no contrary
words used that would negate this assumption.
- These both (as well as the Wheeler case) point to a loosening of the
rule of law re: words of limitation.
In BC Property Law Act, s 19
1) In the transfer of an estate in fee simple, it is sufficient to use the
words “in fee simple” without the words “and his heirs”
2) A transfer of land to a person without words limiting the interest
transferred … passes the fee simple [unless expressly contradicted]

Land Title Act, s 186

- (5) … if the transfer does not contain express words of limitation, the
transfer operates to transfer the freehold estate … in fee simple
- (8) … do not operate to transfer an estate greater than the estate in
 respect of which the transferor is the registered owner

- Typically created by the words “To A for life”

- Duration:
 Typically for life tenant’s lifetime (pur sa vie)
 Can be for another person’s life (pur autre vie)
The Life Estate
- Life estate DOES NOT come with a power to encroach, unless explicit
in the will (or other instrument)
 Land = right to the profit, but not to deplete it
 Estate = right to the interest, not the principle
Reversion
- X grants title “to A for life”
 X retains reversion: fee simple estate reverts to X on A’s
Reversion and
death
Remainder
Remainder
- X grants title “to A for life, then to B and his heirs”
 B acquires a fee simple remainder (B = remainderperson)
Facts:
- John Walker dies and leaves estate to his wife
- Will states that “should any portion of my estate still remain in the
hands of my said wife at the time of here decease undisposed of by
her” it should be divided up
Re Walker Ratio:
(1924) ONCA - To resolve inconsistent intentions you ascertain T’s dominant
intention, reject subordinate intention as repugnant
Analysis:
- Either wife’s gift is absolute & gift over fails, or wife gets LE & gift
over prevails
- Exception: LE with power of sale?
Facts:
- “I give all my estate to my wife to have and use during her lifetime.
Any estate of which she may be possessed at the time of her death
is to be divided equally between my daughters”
Ratio:
- The prime directive is: “to give effect to the testator’s intention
Re Taylor from looking at the will as a whole”
(1982) SK Surr Ct - Power to encroach for maintenance doesn’t change a life estate to a
fee simple
Analysis:
- Operative language differs from Walker (“to have and use”)
- No inconsistent intentions
- Problem  when does a life estate, with power to encroach on
capital, become a fee simple?
Re Christensen Facts:
(1999) ABCA - “I give to my wife 2203 31 Ave SW for her use. When she no longer
needs [it] that she give said property to S & S”
Analysis:
- T’s intention?  Benefit both wife and Christensens
- Held: LE without power to encroach, with remainder to C’s
 Key wording: “give said property”  if encroach on capital,
could no longer “give said property” as it wouldn’t be “said
property”