CONSTITUTIONAL LAW: Prof

Common Law Property (Klinck)Dorian Needham (Fall 2007)

Common Law Property: Summary

Prof. Klinck

Fall 2007

Dorian Needham

TABLE OF CONTENTS

I. Introduction

1. Aspects of the Idea of Property

(a) What is “Property”?

(b) Justifications of (Private) Property

Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937), 58 C.L.R. 479

International News Service v. Associated Press, 248 U.S. 215 (1918)

Moore v. Regents of the University of California, 51 Cal 3d 120 (Calif. Sup. Ct. 1990)

Gilmour, “‘Our’ Bodies”

Caratun v. Caratun (1992), 42 R.F.L. (3d) 113 (Ont. CA)

(d) Who “Owns” Something? Why?

2. The Cultural Relativity of “Property”

Little Bear, “Aboriginal Rights and the Canadian ‘Grundnorm’”

3. Classification/Characterisation of Property

(a) Real vs. Personal Property: The Traditional Categories

(b) Issues of Identity: Which Category?

Biss v. Saskatchewan Government Insurance Office (1981), 6 Sask. R. 438 (Dist. Ct.)

Royal Bank of Canada v. Beyak et al. (1981), 119 D.L.R. (3d) 505 (Sask. Q.B.)

Chelsea Yacht & Boat Co. Ltd. v. Pope, [2001] 2 All E.R. 409 (C.A.)

North York General Hospital Foundation v. Armstrong (2004), 69 O.R. (3d) 603 (S.C.J.)

II. Possession and Property

1. Generally

Rose, “Possession as the Origin of Property”

2. Personal Property

(a) Concepts of Ownership and Possession

(i) Elements of Possession

1. Physical Control

The “Tubantia”, [1924]

Popov v. Hayashi (Sup. Ct., San Francisco Cty., Dec. 18, 2002)

2. Intent to Appropriate

Keron v. Cashman, 33 A. 1055 (NJ Ct. Ch. 1896)

Edmonds v. Ronella, 342 NY Supp. 2d 408 (SC 1973)

(ii) Possession in Relation to Ownership (“jus tertii”)

Wilson v. Lombank, [1963] 1 W.L.R. 1294

(b) Possession and Finding Lost Property

Armory v. Delamirie (1722), 1 Strange 505

Parker v. British Airways Board, [1982] 2 W.L.R. 503 (CA)

Kowal v. Ellis (1977), 1976 D.L.R. (3d) 546

Bird v. Fort Frances, [1949] 2 D.L.R. 791 (Ont. HC)

(i) The Nature of Bailment

Heffron v. Imperial Parking Co. (1974), 46 D.L.R. (3d) 642 (Ont. C.A.)

(ii) Rights and Duties of Bailor and Bailee

Fairley & Stevens v. Goldsworthy (1973), 34 D.L.R. (3d) 554 (N.S.S.C., T.D.)

(iii) Rights of Bailee and Bailor against Third Parties

The “Winkfield”, [1902] P. 42 (C.A.)

3. Real Property

Asher v. Whitlock, [1865] L.R. 1 (QB)

Rose, “Possession as the Origin of Property”

Real Property Limitations Act

Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (CA)

Wood v. Gateway of Uxbridge Properties Inc., [1990] 75 O.R. (2d) 769 (Gen. Div.)

III. Acquisition of Property Interests

1. “Original” Acquisition

2. Aspects of Derivative Acquisition

(a) Gifts of Personal Property

(i) Basic Requirements for Inter Vivos Gifts: Delivery & Donative Intent

Cochrane v. Moore (1890), 25 Q.B.D. 57 (CA)

(ii) Problems of “Delivery”

1. Choses in possession

In re Cole, [1964] 1 Ch. 175 (C.A.)

2. Choses in action

Conveyancing and Law of Property Act, R.S.O. 1990, c. C-34, s. 53(1)

In re Rose, [1949] Ch. 78

(b) Transfers of Interests in Land

Conveyancing and Law of Property Act, s. 15

Lysaght v. Edwards (1876), 2 Ch. D 499 (UK Ch. D.)

Hussey v. Palmer, [1972] 3 All E.R. 744 (UK CA)

IV. Property Interests in Land

1. Basic Concepts of Land “Ownership”

(a) Definition of “Land”

Real Property Limitations Act, R.S.O. 1990, c. L.15

(b) Doctrine of Tenure

2. Interests in Land

(a) Absolute (Unqualified) Estates

(i) Estates of Inheritance

1. Fee Simple

2. Fee Tail

3. The Rule in Shelley’s Case

Re Rynard (1980), 31 O.R. (2d) 257 (ON CA)

(ii) The Life Estate (Non-Heritable)

Re Waters (1978), 21 O.R. (2d) 124 (ON HCJ)

(b) Qualified Estates

(i) General Nature

Re Essex County Roman Catholic Separate School Board and Antaya (1977), 17 O.R. (2d) 307 (ON HCJ)

Re McColgan, [1969] 2 O.R. 152 (ON HCJ)

Re Down (1968), 68 D.L.R. (2d) 30 (ON CA)

(ii) Problematic Qualifications and Their Consequences

In re Tuck’s Settlement Trusts, [1978] Ch. 49 (UK CA)

(i) Common Law Future Interests

1. Basic Concepts

2. The Remainder Rules at Common Law

(ii) Equity

1. Pre-Statute of Uses (1535) Equity

2. Effect of the Statute of Uses

3. The Modern Trust

(iii) Future Interests and Wills

Estates Administration Act, R.S.O. 1990, c. E.22

Re Crow (1984), 48 O.R. (2d) 36 (HCJ)

Re Robson, [1916] 1 Ch. 116

(iv) The Rule Against Perpetuities

1. Common Law Rule

Scurry Rainbow v. Taylor, 2001 CarswellSask 539 (SK CA)

2. Statutory Reform

Perpetuities Act, R.S.O. 1990, c. P-9

3. Concurrent Ownership

(a) Types of Co-Ownership and Their Creation

(i) Joint Tenancy and Tenancy in Common

McEwen v. Ewers and Ferguson, [1946] 3 D.L.R. 494 (ON HCJ)

(ii) Tenancy by Entireties and Co-Parcenary

(b) Rights and Obligations of Co-owners

McClean, “Severance of Joint Tenancies”

Knowlton v. Bartlett (1984), 35 R.P.R. 182 (NB QB Fam. Div.)

Robichaud v. Watson (1983), 147 D.L.R. (3d) 626 (ON HCJ)

(d) Partition or Sale

4. Rights in the Land of Another

(a) “Natural Rights”

(b) Granted Rights: Incorporeal Hereditaments

(i) Easements

Gypsum Carrier Inc. v. The Queen, 78 D.L.R. (3d) 175 (FC-TD)

In re Ellenborough Park, [1956] 1 Ch. D. 131 (UK CA)

Shelf Holdings Ltd. v. Husky Oil Operations Ltd. (1989), 56 D.L.R. (4th) 193 (AB CA)

(ii) Profits à prendre and Covenants

I.Introduction

“There is nothing which so generally strikes the imagination and engages the affections of mankind as the right of property”

– Blackstone

1.Aspects of the Idea of Property

(a)What is “Property”?

CB 1-5

“[P]roperty as a relationship among people in respect of objects”

Legal concept of property concerns the network of legal relationships (socially defined relationships and morally conditioned obligations) between individuals in respect of things
Blackstone: “that sole and despotic dominion which one person claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”
“Sole” and “individual” are questionable: property is more complex and involves an interplay of rights (Klinck: “a complex of relationships”)
The Crown holds radical title to the land, and the property “owner” only owns an estate
Joint tenancy (e.g., spouses)
Mortgages: traditionally, a conveyance of title by the mortgagor (home “owner”) to the mortgagee (lender); with time, courts of Equity reconfigured that relationship such that the mortgagor has some kind of property right recognisable in Equity (the equity of redemption); today, most CML mortgages are simply security interests
Easements (CVL = servitudes): for drainage, power lines, etc.
Restrictive covenants or zoning
Collective or state property
“Despotic” is questionable because the right is not absolute
“External things” excludes or ignores intellectual property, things internal to ourselves or without physical manifestation
Suggests that the relationship is the “dominion” of the “person” and the “external thing” – where it may actually be the obligations of “others” and this “person” with respect to these “things”
Waldron: “rights, liberties, and duties are the basic stuff of ownership”
Many ways to assemble this “bundle of rights”, especially where property object differs
Actual institution changes over time
Definition of who can be the “subject” of property interest has important political significance, affecting balance of power and distribution of goods; important relationship between property law and areas of social/economic inequality
Dynamic quality of objects of property interests
Property is “new law” (new claims reflect desires to overcome 21st-century insecurity of dependency) and also “old law” (old system and way of thinking)  tension
Must question where we get our community norms about property and ownership

(b)Justifications of (Private) Property

Why do we assume that the things of the world should be allocated individually?

Economic efficiency  productivity, assuring “optimal” (maximal?) use of resources
Appeals to “inherent” self-interest
Assumes that resources exist to be exploited
Labour or dessert
We own ourselves, our labour, and our energy – so if we mix it with something, we own that thing
We recognise property rights so that others will not reap where they have not sown
Natural right
Grounded in the notion that humans are special
Cf. the opposing argument that, at creation, we held things communally, and private property results from our fallen nature (“if we were really good people, we wouldn’t need private property”)
Avoiding conflict (Tragedy of the Commons)
If everything were common and resources scarce, overexploitation would ensue
Private property is thus a mode of protecting resources
Owners gain advantages but bear costs, and these costs limit exploitation
Importance for personal autonomy
Freedom of speech is meaningless without a printing press
Guarantee of freedom to act without constraint

(c)What “Things” Are (of Can Be) the Objects of Property Rights?

CB 6-18, 23-26, 65-74, 694-98; CBS 1-2

Property is not the thing itself, but the (bundle of) right(s) that one person has against other people in relation to the thing – things are just the object of property
If you can identify something as property, it is easy to determine a remedy for interference with the property right – but if you can’t, it isn’t

Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937), 58 C.L.R. 479: CB 6-15

Facts: VPR seeks injunction against T and others who built a platform next door and broadcast results of VPR’s races  VPR’s profits fell because fewer people came to watch

Issues: (1) Has there been nuisance? (2) Is there “unnatural use” of T’s land? (3) Does VPR’s “spectacle” qualify as property?

Holding (Latham, 1-[1+1]-[1+1] concurring): (1) No. (2) No. (3) No. Taylor

Nuisance

VPR says its land has been made suitable for races, and T has deprived it of this suitability – but T hasn’t interfered with VPR’s enjoyment of its land or the enjoyment of anyone on VPR’s land
Competition is no cause of action
Only alleged effect is with regard to people not on the land
“the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide”
T is not harming VPR by describing what is happening on his land

Unnatural use

Lawful to erect what one pleases on one’s land
If T complies with broadcasting regulations, not doing anything wrong
No particular connection between T’s use of land and VPR’s loss

Privacy infringement:no general right of privacy
Quasi-propertyin the spectacle:spectacles cannot be owned, and VPR would still have to demonstrate that description of this property is wrongful

Dissent (Rich)

Just because no precedent, doesn’t mean no principle can exist
No general definition of nuisance has been created; the categories of nuisance are not closed
True issue is “whether non-natural use of a neighbour’s land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff’s land to his own commercial ends – a thing made possible only by radio – falls within the reason of the principles which give rise to the action on the case in the nature of nuisance”
Considering all circumstances, and the definition of nuisance as improper or non-natural use that is “tortious and hurtful” towards a neighbour, and the notion of land as a property generating profit to which the owner is entitled: T has right to overlook, but not to sap profits
Right to overlook has never been an absolute and complete right of property incident to the occupation of land and exercisable at all hazards – instead, a right limited by others’ property rights

Concurrence (Dixon)

People who would otherwise come to VPR now stay away
Acts and omissions resulting in liability have long been defined; new applications must still respond to established criteria
Freedom from view or inspection is not a legally protected interest, or a natural right for the breach of which a legal remedy is given
VPR’s complaint is not about interference with enjoyment of land but with profitable conduct of business – but British courts do not protect intangible elements of value
It is not effort that leads to property protection, but identifying a recognised right
Rich attempts to introduce new doctrine into the law

Dissent (Evatt)

VPR’s use is interfered with, profits lessened, land value diminished by T’s purposeful and systematic interference with his privacy
Watching isn’t illegal always – but is in some cases; “watching and besetting” is a recognised private nuisance

Concurrence (McTiernan)

T’s broadcasting doesn’t interfere with VPR’s enjoyment of land or conduct of the races
This case doesn’t fit in the scope of watching and besetting

Ratio:spectacles cannot be owned; no general right of privacy; no general definition of nuisance; intangible elements of value are difficult to consider as property

Comments

How important was it to Latham that the claimed quasi-property was intangible?
Gray: if something is not private property, it must be common property – so did the Court leave the racecourse as common property?

International News Service v. Associated Press, 248 U.S. 215 (1918): CBS 1-2, CB 23-26

Facts: INS receives AP’s news wires in NYC and transmits them pre-dawn to LA for sale, without having spent the money on reporting the news itself

Issues: (1) Is there any property in news? (2) Does property in news survive the first instance of its publication? (3) Does INS’ action constitute unfair competition in trade?

Holding (Pitney): (1) Yes. (2) Yes. (3) Yes.Associated Press

AP’s news matter is not copyrighted; must distinguish substance from form
News of current events is common property
Unfair competition must be decided based on business circumstances
AP has expended labour and effort for news to be distributed to those who will pay money for it, and both AP and INS seek to make money for it – so can be regarded as quasi-property as between them
Courts of equity treat any civil right of a pecuniary nature as a property right
News has an exchange value to one who can appropriate it
INS insists that when news reaches light of day it becomes common property – but this is true of AP’s right against the public, not against INS
INS engages in unauthorised interference with normal operation of AP’s legitimate business precisely at point where profit is to be reached, in order to divert profit with no effort expended  unfair competition in business
News is not abandoned on publication, as abandonment is a question of intent – instead, it is publication for a limited purpose

Ratio:news has all the attributes of property (requires labour, has value) necessary for determining that its misappropriation is unfair competition because contrary to good conscience

Moore v. Regents of the University of California, 51 Cal 3d 120 (Calif. Sup. Ct. 1990): CB 65-80

Facts

M had spleen removed by Dr. at UoC, who used the tissue lines for own research
Dr. was awarded patent on the cell line and derived products

Issue: do Dr.’s actions constitute tort of conversion (dependent on finding that M had some property interest in his bodily tissues)?

Holding (Calif. App. Ct.): yes Moore

Holding (Calif. Sup. Ct.): no Regents of the University of California

Ratio:once cells are excised and cease to be unique, patients lose control (and thus proprietary interest) over them

Comments (from Gilmour, “‘Our’ Bodies”: CB 66-73)

Appeals Court / Supreme Court
Decision /

M adequately stated cause of action for conversion

No cause of action for conversion; M can proceed with action based on lack of consent

Legal concept of property /

Property as a bundle of rights, with content of bundle varying depending on nature of property, situation of owner, and context
Ability to control use of and access to “the property” as constitutive of the property rights and determinative of in whom it lies
Property claims are valued for support for boundary-drawing

Characterisation of property interest /

“right and interest or domination rightfully obtained over an object”
Individuals are able to determine what is done with parts of their bodies
Necessary interconnection between property and personhood: control over environment necessary for personhood (property as instrumental in promoting privacy and dignity)

Statute law circumscribes control so extensively that there is nothing left to call “property”
Once cells are excised, patient loses control over them and thus loses proprietary interest
Cells are not unique (Gilmour: this inappropriately mixes patenting “uniqueness” requirements with property rights)
Labour (here, the researchers’) produces property

Lack of consent /

not addressed

M’s action permitted – but greater hurdles than the conversion claim

Questions raised /

Why does the presence or absence of control translate into a property right?
How far is it from characterising property of and for oneself to property of and for someone else?

Language of property automatically imports an economic orientation (property as something appropriate to buy and sell)
Legislation that limits property rights often seen as “taking away” something from people – when it could be empowering or supportive
M’s loss often seen as unfair, not only on the consent issue, but because he’s seen as having lost a market share
Legal and biotechnological developments mean that human person’s status not at risk, but body’s and body parts’ is
Decision doesn’t change existence of market for body parts: just excludes human source of tissue from sharing in it as a co-owner
Biotechnological research distances source from recipient, and involves marketing – this decision probably affected by fact that this was not a one-to-one “gift of life”
Debate about property rights in human tissue has been overtaken by events – human tissue is already treated as property, even though biotechnology doesn’t fit into existing categories well
New regulatory regimes have been proposed (Gilmour: need different rules relating to persona and objects)

Caratun v. Caratun(1992), 42 R.F.L. (3d) 113 (Ont. CA): CB 694-700

Facts

Dr. C married Mrs. C and had a child in order to immigrate to North America and practice dentistry
Mrs. C worked hard to support him
Two days after getting his dental license, Dr. C rejected Mrs. C as his wife

Issue: is Dr. C’s dentistry license “property” under the Family Law Act?

Holding: no Dr. Caratun

Trial judge held that dental license was property, defined as “any interest, present or future, vested or contingent, in real or personal property”
Characterisation of the license: only real right of license holder is right to work in a profession – but this right’s nature means that the license can’t be property
Non-transferable: personal to the holder; different from the practice that can later be built; nothing currently unavailable for transfer; some things restrained from transfer are inherently transferable, but this is not
Requires personal efforts of the licensee: definition of “property” can’t include work to be performed in the future
No different from any other right to work, except for its exclusivity
Valuation of the license: would be unfairly speculative; most value depends on personal labour after termination of the relationship; no value at valuation date
If it was property, could be subject of constructive trust – but if not property, nothing to which a trust could attach
Dr. C still required to pay a lump sum to Mrs. C

Ratio: licenses do not qualify as property

Comments:3 basic approaches in US decisions: reimbursement of costs, sharing in enhanced earning capacity or benefits, provision of equivalent opportunity

Reasons (not) to qualify something as property

Inherent characteristics (or possible candidates)
Value: actual value (to the person, or on exchange) vs. valuation (something may be valuable, though it can be difficult to assign a value to it)
Tangible – but there are many intangible things that are property objects (likely the majority in our culture: debts, IP, shares, etc.)
Enterprise/labour/ingenuity (Pitney wrestles with this in INSabove: can’t stomach that someone who didn’t work for it should claim a property right in something)
Transferability: if something can’t be transmitted, can it be property?
Exclusivity
INS: news has no value unless it is put into the public domain – but once it’s put there, does it have the exclusivity required to be property?
If you make an asset available indiscriminately to everybody, can you say that it is property?
Some things are so plentiful that they appear to be insusceptible to property rights (e.g., air)
Cultural values (certain things like kidneys are forbidden to consider as property)
Moore: one judge argues that we can’t treat M’s cells as property, because we have to maintain the distinction between the sacred and the profane
Sacred: there are some things to which we attach some kind of intangible value, that we believe should not be treated in certain ways
Profane: thing without this special value, that we are willing to treat in an ordinary fashion
In our culture, we accord special sanctity to the human person and resist the idea of commodifying it
But we often treat human attributes as property (e.g., blood, sperm, eggs, hair, cell lines; ideas, thought, labour; insurance of body parts; image, modelling)
Can we unify these attributes with the principle of renewability (doesn’t intrude upon the central integrity of the person)?

State or common property