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.