TOPIC / SUMMARY / CASE LAW
REMEDIES: REAL PROPERTY
REMEDIES: PERSONAL PROPERTY / REAL PROPERTY
Nuisance
●Remedy against someone, not on the land (otherwise it is trespass) interfering with one’s enjoyment of the land.
●Cause of action is available to possessor because it doesn’t challenge the title in the good.
●Remedy: damages for harm or injunction.
Ejectment
●Right of title holder to eject the possessor.
●Possessor 1 can eject possessor 2, proven on the strength of plaintiff’s title.
Trespass
●What? Mirror image of nuisance but on the land. Trespass “lie where an immediate injury is committed to the land, with force either actual or implied, and, though the door of the house through the trespasser entered was open” Roscoe p.225.
●Sections: 6, 8, 9: Merely stepping on land is not trespass. Real Property Limitations Act.
●Who can sue? Actual possessor in fact. *a person who only has possession in law, as the heir before entry, cannot bring trespass.
●Remedy: damages for harm.
PERSONAL PROPERTY (BC Law Reform Article)
Remedies are used for: damage to property, damage to ownership, or damage to possession. Each remedy deals with an intentional harm, not negligence. Once the wrongdoer has intermeddled, he is responsible for any future harm.
Detinue (Interference with possession) *used rarely*
●Remedy for wrongful (without justification) refusals of returning property to person entitled to it
●Who can sue? Person entitled to possession, not necessarily owner
●Holder may take reasonable time to verify right of requester
●Remedy: Order for return of the goods, or damages
●Value is determined at the date of trial
●For tangibles and intangibles.
Trespass to chattels (Interference with possession OR damaging goods)
●Wrongfully taking or damaging another’s property
●Who can sue? Whoever had possession when wrong occurred, only possessor (or owner with possession)
●Direct interference only
●Goods recovered: damages for loss due to trespass / Goods not recoverable: value of goods.
●For tangibles and intangibles.
Conversion (Trover) (Interference with dominion)
●Serious interference with property, including destruction
●Who can sue? Whoever has dominion (which can include possession)
●Property: Tangible personal property, including documents evidencing rights, but not money.
●Comparing with detinue or trespass: depends on severity of interference with the right
●Remedy: Conversion forces wrongdoer to pay the value, hence buying the property
●Value is determined at the date of conversion
●Shared ownership: full value of the goods
●Mitigation is necessary by claimant
●If seller profits from the sale of converted property, he gets to keep the profits according to the following rules:
○Shewish v. MacMillan Bloedel Ltd: “mild” rule for damages: damages will deduct cost of transporting property to market and labour when person acts innocently (unknown conversion)
○Knowing converter: all but getting property to market-- punitive component
●ONTARIO: Two-year ultimate limitation for good faith purchasers of converted chattel (ON Act, s. 15(3))
Unnamed Torts (Reversionary interest) / Harrison v. Carswell (1975)
F: Picketer picketing on shopping mall sidewalk in front of employer charged with trespass by owner of shopping mall, who claims that (following R v. Peters) an owner who grants a class of the public a right of entry to his property can withdraw invitation to public. He who refuses is in trespass.
Q: Is there trespass?
H: Yes.
R: The Manitoba legislature has declared in The Petty Trespasses Act that any person who trespasses upon land, upon which he had been requested by the owner not to enter, was guilty of an offence. If there was to be any change in the law, it must, in the Court's opinion, be made by the legislature.
-Laskin dissent: distinguishing with the Petercase: in the present case, it is not a general demonstration for a boycott, it involves a tenant of the premises.
-Courts cannot mechanistically defer to precedents.
-In the case of a shopping center, “the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour or by reason of unlawful activity”.
-“Owner cannot act as surrogate of tenant in labour dispute”.
Intel Corporation v. Hamidi, US (I: 219-241)
F: H hijacked email system of I. Sent an angry email to all employees.
Q: Trespass to chattels?
R: (MS) (1) Trespass to chattels requires harm to the plaintiff, the chattel, or another property interest; (2) What constitutes a violation of property rights depends in part on the purpose and function of the movable property; (3) Extension of the tort into new areas is governed by policy concerns.
ACQUIRING PROPERTY RIGHTS THROUGH SALE AND POSSESSION
Possession = intention to possess (objective standard) + exclusive control (contextual to the object). / Conveyancing and Law of Property Act- LAND
S. 3: A feoffment, otherwise than by deed, is void and no feoffment shall have any tortious operation. (No more feudalism, hurrah!)
S. 9: A partition of land, an exchange of land, an assignment of a chattel interest in land, and a surrender in writing of land not being an interest that might by law have been created without writing, are void at law, unless made by deed.
S. 10: A contingent, an executory, and a future interest, and a possibility coupled with an interest in land, whether the object of the gift or limitation of such interest or possibility is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon land, may be disposed of by deed, but no such disposition, by force only of this Act, defeats or enlarges an estate tail.
Sale of Goods Act- STUFF/PERSONAL
S. 2A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a money consideration, called the price, and there may be a contract of sale between one part owner and another.
S. 17Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer until the goods are ascertained.
S. 18(1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.
S. 19 De facto rules for transferring property: (1)Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery or both is postponed. (2)Where seller has to prep goods for deliverable state, property does not pass until such thing is done and the buyer has notice thereof. (3) If seller has to measure to figure out price of goods, property does not pass until such act or thing is done and the buyer has notice thereof. (4)When goods are delivered to the buyer on approval or “on sale or return” or other similar terms, the property therein passes to the buyer; (i) when the buyer signifies approval or acceptance; (ii) if the buyer does not signify approval or acceptance to the seller but retains the goods or within fixed or reasonable time. (5) (i) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer, and such assent may be expressed or implied and may be given either before or after the appropriation is made. (ii) Where in pursuance of the contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, the seller shall be deemed to have unconditionally appropriated the goods to the contract.
S. 21Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but, when the property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not, but, (a) where delivery has been delayed through the fault of either the buyer or seller, the goods are at the risk of the party in fault as regards any loss that might not have occurred but for such fault; and (b) nothing in this section affects the duties or liabilities of either seller or buyer as a bailee of the goods of the other party.
S. 22 Subject to this Act, where goods are sold by a person who is not the owner, the buyer acquires no better title to the goods than the seller had, but nothing in this Act affects, (a) the Factors Act; or (b) the validity of any contract of sale.
S. 24When the seller of goods has a voidable title but the seller’s title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if they are bought in good faith and without notice of the seller’s defective title (check out this gem:
Succession Law Reform Act
S. 2 A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity, including, (a) estates for another’s life, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments; (b) contingent, executory or other future interests in property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether he or she is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will; and (c) rights of entry, whether for conditions broken or otherwise.
S. 3A will is valid only when it is in writing. / Pierson v. Post (I: 98-101)
F: Fox hunted by two people in vacant land. One hunts the fox for a while, the other fatally wounds it and takes it.
I: Whose property is the fox? “Trespass on the case”
R: (Tompkins J [Maj]): Pursuit gave Post no legal right to the fox. The fox (ferae naturae) became the property of Pierson, who intercepted and killed him. Possession: unequivocal intention of appropriation, depriving of natural liberty, and bringing within certain control. (Livingston J [Dis]): Foxes are horrible, let’s kill them. Appealing to sub-community standard (huntsmen) and public good (killing foxes).
Ratio: Possession: intention + certain control.
NB: how you define the property factually will change the result.
The Tubantia (I: 102-105)
F: There’s a hull of a sunken Dutch ship (The Tubantia) in the North Sea, and both parties believe it carries treasure. Plaintiffs assert possessory rights over the wreck and its contents and complain of the defendant's trespass and interference in business. Defendants deny plaintiff’s possession and their trespass. The plaintiffs had worked on the wreck 24 days in 1923, and their installation on the high sea was destroyable.
I: Did the plaintiffs have possessory rights over the wreck?
R: (Sir Henry Duke) The courts must follow Pollock’s lead in asking: What kind of physical control is the thing capable of? Was there a complete taking? Was there an intention to possess? Judge finds that the plaintiffs behaved like a prudent owner (prudent owner test), given the nature of the wreck and the level of control it admitted.
F: Plaintiffs were in possession: they had use and occupation as capable, they could exclude strangers, and they had animus possidendi. Defendants are restrained from the Tubantia, but no title is given.
Ratio: Physical control test must be tailored to the object.
Popov v. Hayashi
F: Popov catches famous baseball, gets knocked to the ground and then Hayashi takes it from the ground and has it. P claims possessory interest and that H has intentionally taken the ball from him: conversion. H argues that P did not have possession because he did not have complete control of the ball.
I: Who has possessory interest in the baseball- P or H? Has P achieved possession as he attempted to catch the ball?
R: (McCarthy J) The judge emphasizes that it is impossible to make the critical finding of control for Popov because of the crowd’s interference. Before the ball was hit, it was the property of Major League Baseball. Then, once hit, it became intentionally abandoned property. Whoever came in possession of the ball became its owner. Possession is a process that includes acts and thoughts of the possessor leading to the moment of possessor. Did P sufficiently control the ball? Some cases argue that complete control is necessary; others than the would-be possessor be engaged in efforts to establish control. The rules are contextual in nature.
Rule: Court eventually decided that both parties had legal rights to the ball and neither could be deprived of it lawfully. The best solution was an equitable division.
Ratio: Pre-possessory interests can have legal value, leading to divide possessory interest in proportion to the strength of each interest.
Notes: Decision set a new precedent of qualified pre-possessory interest allowing for both Popov to claim his property had been converted and it was still his, while also allowing Hayashi to have legal rights over the ball.
ACQUIRING PROPERTY RIGHTS THROUGH LABOUR / Understanding the subject of property rights is a key issue to understanding the dispute: public v. private in INS v. AP and Moore.
INS v. AP USSC 1918 (I: 39-54)
Facts: INS copied news from bulletin boards and early editions of AP’s newspapers and selling this, either bodily or after rewriting it, to INS’s customers.
Issue: 1) Does AP have any rights in its news? 2) Was there unfair competition?
Holding: 1) quasi-property rights; 2) yes.
Reasoning: (Pitney J) Focuses on the commercial nature of the reappropriation of the information. Failure to give good credit amounts to misrepresentation. In determining the rights over the news, consideration needs to be whether an agency has property rights in the news it collected versus other collecting agencies, rather than against the public at large.
(Holmes J dis. ) No applicable property regime here: “property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because someone has used it before, even if it took labor and genius to make it” p.46. INS should be permitted to publish unless they don’t credit the work.
(Brandeis J Dis. ) Creating of quasi-property rights is dangerous as it opens the door to uncertainty and could harm the public interest in news information.
Ratio: Creation of quasi-property rights only among competitors (based on commercial action put into producing the news).
NB. Case decided by the majority under unfair competition.
NB. the injunction as remedy is maintained.
Moore v. Regents of the U of California 1990(I: 66-82)
Facts: M’s spleen was removed by a doctor. The doctor then grew cells from the spleen that had value as research materials. M claims that the spleen and its cells were used without his consent for commercial purposes. M pleads conversion of the cell lines.
Issue: Does M have a cause of action in conversion?
Holding: No.
Reasoning:Majority (Panelli): M’s claim in conversion amounts to asking for property rights in his own body, since he had no intention of retaining possession of his spleen after surgery. Such a right does not existing under current case law or statutes. The cell lines are “factually and legally distinct from what was taken from Moore’s body.” Although rights are granted over human tissues, they are either non-property rights or via patents, and M cannot lay claim to the inventive step in the defendant’s patents. Should the tort of conversion be extended? The strongest policy concern here is permitting researchers to use cell lines with confidence. Giving M property in the cell line itself would “threaten to destroy the economic incentive to conduct important medical research”, since conversion is a strict liability tort. No property rights. The best way to solve this problem is full enforcement of physicians’ fiduciary duties.
Arabian (concurring): M “entreats us to regard the human vessel – the single most venerated and protected subject in any civilized society – as equal with the basest commercial commodity.” This is a weighty decision not susceptible to judicial resolution. Determination of property rights in the human body is a decision best left to the legislature.
Broussard (dissenting): Believes that since the doctor’s wrong was perpetuated against M prior to removal of the spleen, M can claim a property right over the cells, as California law gives decision making power about organs to the patient while they are in his body.
Mosk (dissenting): The cell lines are neither factually nor legally distinct from the cells taken from Moore’s body. Factually: Cell lines are intended to be identical to the originator cells, otherwise they would not be useful. Legally: Patents cannot retroactive immunize the university against infringing Moore’s rights. Furthermore, the majority’s policy arguments are not well-founded – researchers already take very good care to verify the source of their cells, so verifying ethical compliance would be easy. The university’s actions amount the unjust enrichment.