Property, Napoleon, Fall 2012 & Spring 2013

Napoleon’s Office: Room 210

1. Guiding Principles: a. Fairness, Exclusivity, Control

2. Important Concepts in Red | Public Policy Arguments (and other criticisms) in Purple

ContentsThe Nature of Property................................................................................................................................5

Defining Property....................................................................................................................................5

Private, Common, State, Non Property...................................................................................................5

Right to Exclude.......................................................................................................................................5

“Property and the Right to Exclude” - T.W. Merril...............................................................................5

Disagreement on Content of Rights.....................................................................................................5

Property Needs Justification....................................................................................................................5

Theories on Justification......................................................................................................................6

Novel Claims............................................................................................................................................6

Property in Perspective...............................................................................................................................7

Aboriginal Legal Traditions – Richard Overstall “Encountering the Spirit in the Land”........................7

English Common Law...........................................................................................................................7

Types of Property Rights......................................................................................................................8

Property, Class, and Poverty....................................................................................................................8

Homelessness and the Issue of Freedom – Jeremy Waldron...............................................................8

Controlling Chronic Misconduct in City Spaces – R.C. Ellickson...........................................................8

Creation of Property Rights.................................................................................................................8

Protections for Property..........................................................................................................................9

Takings.................................................................................................................................................9

Constitutional......................................................................................................................................9

NAFTA..................................................................................................................................................9

Boundaries..................................................................................................................................................9

Land: Airspace and Subsurface Rights.....................................................................................................9

Above the Surface (ad coelom)............................................................................................................9

Below the Surface (ad inferos)...........................................................................................................10

Economic Perspective........................................................................................................................10

Mines and Minerals...........................................................................................................................10

Lateral Boundaries.................................................................................................................................10

Water Boundaries..................................................................................................................................11

Riparian Rights.......................................................................................................................................11

Fisheries.............................................................................................................................................11

Accretion...........................................................................................................................................11

Fixtures..................................................................................................................................................12

Transformation of Chattel Ownership...................................................................................................12

Unjust Enrichment.............................................................................................................................13

Tangible and Intangible Resources........................................................................................................13

Copyrights..........................................................................................................................................13

Patents...............................................................................................................................................13

Trademarks........................................................................................................................................13

Cyber Trespass...................................................................................................................................14

Concept of Possession...............................................................................................................................14

Basic Definitions....................................................................................................................................14

Conversion.........................................................................................................................................14

Acquisition of Title by Possession: Squatters.........................................................................................15

Adverse Possession............................................................................................................................15

The Relative Nature of Title: Finders.....................................................................................................15

Transfer of Title Through Delivery: Gifts................................................................................................16

“Gifts, Bargains, and Form” - J.B. Baron.............................................................................................16

Inter Vivos Gifts.................................................................................................................................16

Mortis Causa Gifts..............................................................................................................................16

Common Law Estates................................................................................................................................17

Resolving Disputes.................................................................................................................................17

Estate in Fee Simple...............................................................................................................................17

“Property in Land: Fee Simple, the Advantages of Perpetual Land Ownership” - R.C. Ellickson........17

Life Estate..............................................................................................................................................17

Waste................................................................................................................................................18

Life Estates Arising by Operation of Law – “Homestead Legislation” W. Renke................................18

Fee Tail..................................................................................................................................................18

Estates in Personality.............................................................................................................................18

Cases.........................................................................................................................................................19

Cases: Nature of Property......................................................................................................................19

Yanner v Eaton (HC-AUS, 1999) [pg. 12]............................................................................................19

Harrison v Carswell (SCC, 1976) [pg. 19]............................................................................................19

Cases: Property in Perspective..............................................................................................................20

Calder v British Columbia (Attorney General) (SCC, 1973) [Moodle]..................................................20

International News Service v. Associated Press (USSC, 1918) [pg. 47]...............................................21

Victoria Park Racing v. Taylor (HC-AUS, 1937) [pg. 54]......................................................................21

Moore v. Regents of the University of California (USSC, 1990) [pg. 60].............................................22

Victoria (City) v. Adams (SCC, 2008) [pg. 130]...................................................................................24

Pennsylvania Coal Co. v. Mahon (USSC, 1922) [pg.148].....................................................................24

Lucas v. South Carolina Coastal Council (USSC, 1992) [pg. 149]........................................................24

Mariner Real Estate Ltd. V. Nova Scotia (Attorney General) (SCC, 1999) [pg. 152]............................25

CPR v. City of Vancouver (SCC, 2006) [pg. 163]..................................................................................25

Metalclad Corp. v. United Mexican States (NAFTA Tribunal, 2000) [pg. 170]....................................25

Cases: Boundaries..................................................................................................................................26

Didow v. Alberta Power Ltd. (ABCA, 1988) [pg. 176].........................................................................26

Edwards v. Sims (KYCA, 1929) [pg. 184].............................................................................................26

Robertson v. Wallace (2000, AB-QB) [pg. 204]..................................................................................27

Blewman v. Wilkinson (1979, NZ) [pg.207]........................................................................................27

R. v. Nikal (1996, SCC) [pg. 213].........................................................................................................28

North Saanich District v. Murray (1975, BCCA) [Moodle]..................................................................28

Steadman v. Erickson Gold Mining Corp. (1989, BCCA) [Moodle]......................................................28

La Salle Recreations Ltd. V. Canadian Camdex Investments Ltd. (1969, BCCA) [pg. 225]...................29

Diamond Neon (Manufacturing) Ltd. v. Toronto-Dominion Realty Co. (1976, BCCA) [pg. 230].........30

Glencore International A.G. et al. v. Metro Trading International Inc. (2001, UK) [pg. 241]..............30

McKeown v. Cavalier Yachts Pty. Ltd. (1988, AUS).............................................................................31

Thomas v. Robinson (1977, NZ) [pg. 246]..........................................................................................31

Gidney v. Shank (1995, MBQB) [pg. 247]...........................................................................................32

Theberge v. Galerie d’Art du Petit Champlain (2002, SCC) [pg. 252]..................................................32

Monsanto Canada Inc. v. Schmeiser (SCC, 2004) [pg. 259]................................................................33

Mattel, Inc. v. 3894207 Canada Inc. (SCC, 2006) [pg. 272]................................................................34

Black v. Molson Canada (ICANN Resolution, 2002) [pg. 278]............................................................35

Tucows.com v. Lojas Renner (ONCA, 2011) [pg. 279]........................................................................35

Intel v. Hamidi (CaliforniaSC, 2003) [pg. 282]....................................................................................35

Cases: The Concept of Possession.........................................................................................................37

Popov v. Hayashi (CASC, 2002) [pg. 293]...........................................................................................37

Pierson v. Post (SCNY, 1805) [pg. 303]...............................................................................................37

Clift v. Kane (NFLD-SC, 1870) [pg. 304]..............................................................................................38

Keefer v. Arillotta (ONCA, 1976) [pg. 307].........................................................................................38

Jewett v. Bil (NBCA, 1999) [pg. 315]...................................................................................................38

Teis v. Ancaster (Town) (ONCA, 1997) [pg. 317]................................................................................38

J.A. Pye (Oxford) Ltd. v. Graham (HoL-UK, 2003) [pg. 325]................................................................39

Bentley v. Peppard (NSSC, 1903) [pg. 326]........................................................................................40

Barberree v. Bilo (ABQB, 1991) [pg. 327]...........................................................................................40

O’Keeffe v. Snyder (NJSC, 1980) [pg. 327]..........................................................................................40

Solomon R. Guggenheim Foundation v. Lubell (NYCA, 1991) [pg. 328]..............................................40

Trachuk v. Olinek (ABQB, 1995) [pg. 329]..........................................................................................40

Parker v. British Airways Board (CoA-UK, 1982) [pg. 339].................................................................41

Baird v. British Columbia (BCCA, 1992) [pg. 340]...............................................................................41

Charrier v. Bell (LASC, 1986) [pg. 342]...............................................................................................41

Stewart v. Gustafson (SKQB, 1999) [pg. 345].....................................................................................42

Nolan v. Nolan & Anor (VSC-AUS, 2003) [pg. 350].............................................................................42

Re Bayoff Estate (SKQB, 2000) [pg. 358]............................................................................................43

Cases: Common Law Estates.................................................................................................................44

Thomas v. Murphy (NBQB, 1990) [pg. 369].......................................................................................44

Re Walker (ONCA, 1924) [pg. 374].....................................................................................................44

Re Taylor (SKSC, 1982) [pg.377].........................................................................................................44

Christensen v. Martini Estate (ABCA, 1999) [pg. 383]........................................................................45

Powers v. Powers Estate (NFLD-QB, 1999) [pg. 393].........................................................................46

Hurst v. Soucoup (NBQB, 2010) [pg. 399]..........................................................................................46

The Nature of Property

Defining Property1. Property, unlike possession, is concerned with a right of the person, not the things themselves 2. A property right is a claim which is enforced by the state to some use or benefit of something3. Property rights are created and enforced by an independent source (typically state law)

Private, Common, State, Non Property1. Private Property is a guarantee to exclude others from the use or benefit of something

a. One or a small group of persons have certain exclusive rights to resourcesb. Non-owners have a duty to refrain from preventing owners’ socially acceptable uses

2. Common Property is a guarantee not to be excluded from the use or benefit of somethinga. Qualified members of a group have equal rights to resources

3. State Property is The State’s right to determine rules of access or usea. Must manage for the public welfareb. Public don’t necessarily have right of access, but have a right to follow rules

4. Non-propertya. No individual has a duty to refrain from access and useb. No individual has right to prevent others from access and use

Right to Exclude

“Property and the Right to Exclude” - T.W. Merril1. Right to exclude others is a necessary condition for property2. Rights associated with property require some institutional structure

Disagreement on Content of Rights1. Single-Variable Essentialism – Right to exclude is necessary and sufficient for property

a. Felix Cohen: Property is: “To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed, Private citizen; Endorsed, The state”.

i. Private property must be legitimized by societyii. A property right is a capacity to enforce a claim, typically done with society’s

endorsement (Yanner)b. Exclusion right means more than prevention of access, it’s the power to set the agenda

2. Multi-Variable Essentialism – Right to exclude is necessary, but not sufficient for propertya. Blackstone: Property is: Possession, use and dispositionb. Honore: 11 conditions must be satisfied to represent paradigm of full ownership

3. Nominalism – Property is a conventional concept with no fixed meaninga. Hohfeld: Property is whatever government says it is

4. In Canada, the right to exclude may depend on the use of the private propertya. Ex. if private property exists for public ends, owners may not have full rights to exclude

(Harrison dissent)

Property Needs Justification1. C.B. MacPherson: Any institution of property requires a justifying theory

2. Enforceability of property rights requires society’s belief that property is a moral right

Theories on Justification1. John Locke: Labour Theory

a. By mixing one’s labour with the material world, one can claim that portion from the commons as private property

i. Upheld in International News Service, Refuted in Victoria Park Racingb. Critiques: Few things produced by labour of only one person, Does not take account of

needs of others, does not account for inheritance or transfer2. Economic Theory

a. Person who makes greatest profit is person who has greatest power to foresee demandb. Critiques: Many things (eg. land) are not increased by making them private property,

community benefits sacrificed for private gain3. Utilitarian Theory

a. Average happiness of society will be greater if resources are owned and controlled privately

b. Critiques: Take human interests as given, no heed to problem of distribution (equality and justice), assumes fulfilment of desire can be quantified

4. Rights-Based Approacha. Waldron: Individual interest is sufficiently important from a moral point of view to

justify holding people to be under a duty to promote iti. Interest can be personal preferences, and objectively determined interests

ii. Human interest in ownership is important enough to restrain government actionb. General justifications are closely connected with the rights of freedom and liberty

i. Private property offers security and independenceii. It allows for self-assertion and recognition, thus free and independent

iii. Promotes stability, discipline and responsibilityiv. Everyone should thus be eligible to hold property

c. Critiques: this is at most a theory arguing for the provision of pressing material needs, rights to resources not constrained by reasonableness,

i. People cannot be free unless basic needs are met but these needs seem to be able to be satisfied by possession (not ownership)

ii. Property becomes essential to freedom without an appeal to poverty1. Insufficient to give people an opportunity for property, under this model

freedom requires private property5. Pluralist Theory

a. Muzner: Theory rests on utility and efficiency, justice and equality, and a principle of desert based on labour

i. Some private property, limited by “sensible government regulation” is justified

Novel Claims1. In business, he who has fairly paid the price should have the beneficial use of the property (INS)

a. However, property also requires exclusion from interference (INS Dissent)i. Ex. In INS, there was no exclusion, but majority held there were property rights

2. Novel creation of value does not automatically create a right to exclude (Victoria Park)3. Court will consider policy arguments to deny property rights

a. Eg. Where right to exclude will hinder the field of science (Moore)

Property in Perspective1. Aboriginal title has been recognized at some point in history (Calder)

a. Disputed whether government exercises have extinguished those land claims (Calder)

Aboriginal Legal Traditions – Richard Overstall “Encountering the Spirit in the Land”1. Property is a marriage of territory to chief2. Property arises only out of reciprocal interaction, and is therefore more than a commodity

a. All property has spirit, thus worthy of respect; chief’s power comes from this respect b. Ex. Deer as quasi-property, agreement between humans & deer; held in common by all

3. Feasts are a legal transaction and maintain the relationship between spirit and humana. Used to hold land transfers, torts regarding property, consolidate chief’s power etc.

4. Three main Gitxsan property laws:a. Primary laws of Respect and Balance b. Interpretation of the primary lawsc. “Strict” laws, constitutional in nature [ex. No marriage within a clan]

English Common Law1. 1066: Norman Conquest shifts from allodial (you own something) to tenurial (King owns all land)

a. William Conqueror takes lordship of all lands, gives tracts to major supporters “lords”b. In return the major supporters grant tracts to Tenants, “subinfeudation”

2. Tenants are free and unfreea. Free tenure – Reciprocal relationships, services exchanged for the lands: 4 types

i. Knight Service – Security, armed service, eventually replaced with moneyii. Serjeantry – Splendor, basically pomp, cooks, butlers, etc.

iii. Frankalmoin – Spirit, religious services, priestsiv. Socage – Subsistence, labour services, agriculturalv. Incidents of tenure

1. Death duties:a. Escheat – Tennant dies with no heir, land reverts to Lordb. Relief – Payment made to Lord to live on the landc. Wardship – Underage heir, Lord controls land until heir is of aged. Marriage – Lord can “sell” the marriage

b. Unfree Tenurei. Copyhold – villeins belong to the Lord, have no rights (until much later)

3. Royal courts eventually took over controversies involving land held by lords4. History of Tenures

a. Inheritance – Ancestor dies, property passes down lineage (can’t sell; can subinfeudate)b. 1290 Quia Empotres – Ends subinfeudation, substitution is ok without Lord’s permission

i. Shortened the feudal chain, anyone can be a buyer or sellerc. 1540 Statute of Wills – Could divide & inherit land, stopped king from controlling all landd. 1660 Statute of Tenures – Abolishes feudalism

Types of Property Rights1. Real/Personal – Can you get it back?

a. Real property – Gives you a real action to recoverb. Personal property – No real action can recover the thing (ex. A lease of land)

i. Seek compensation for loss of property instead of recovery of the thing2. Legal/Equitable

a. Equitable rights i. Concerned with fairness, balance legal rights

ii. Created with less formality than legal property rightsiii. Are less durable, and more extinguished than legal property rights

b. Both are now merged into one3. Tangible/Intangible – Can you hold it?

a. Tangible – Right in property that entitles holder to exclusive physical possessioni. Right to possession of goods – Chose in possession

b. Intangible – Intellectual propertyi. Personal property right to intangible thing – Chose in action

Property, Class, and Poverty1. Statutes that violate rights may be deemed constitutional when weighed against objectives

a. Ex. Objective of regulating safety on roadways deemed more important than free expression (Banks)

b. Ex. Objective of keeping parks aesthetically pleasing deemed less important than security, liberty and human flourishing (Adams)

Homelessness and the Issue of Freedom – Jeremy Waldron1. Freedom is intimately connected with food, shelter, clothing, and the satisfaction of basic needs

a. Without private property or consent on public property, you’re not free to be anywhereb. Sleep/shelter are necessary preconditions to any kind of security, liberty

2. Society is obligated to provide the minimums to allow people to reach their full potential

Controlling Chronic Misconduct in City Spaces – R.C. Ellickson1. If we want to curb disorderly conduct in public access areas then check the rise of social poverty

a. Posing more limits on “street laws” do nothing to root out the actual problem

Creation of Property Rights1. Wrongs – Theft 2. Consent – sale of goods, bequests etc.

3. Unjust enrichment – Benefiting from someone else’s work

Protections for Property

Takings1. Courts presume real or personal property can’t be taken by government without compensation2. Common Law: Crown grant of land is irrevocable, unless there’s an express power of revocation

a. Otherwise clear legislation is required3. Statutes providing for wholesale confiscation are unassailable as a denial of due process

a. Arthorson: Veterans owed billions by government, but are denied through legislationi. The Bill of Rights doesn’t guarantee compensation after government takings

Constitutional 1. Canada doesn’t have constitutional guarantees for property protection

a. Charter affects private property (protects unreasonable search and seizure, advertising)b. Charter restricts public property regulations (freedom of expression and assembly)c. Contrast: US 5th amendment constitutionally protects property rights

i. US private owners do not have to bear public burdens (Mahon)2. Canada: no protection for regulations that damage property economically, but there is in the US

a. Mariner Real Estate: similar facts as Lucas (US); legislation eliminated economic value in property; MRE wanted compensation, but this wasn’t legally sufficient for compensation

3. Exception: Manitoba Fisheries: SCC recognized property interest in goodwill business generated; the Crown, by nationalizing the industry, had taken that goodwill; thus required compensation

4. South Africa tried to introduce property rights & produce economic reform (s25 SA Constitution)a. S.25 protects property rights but also requires redistribution, not clear how it works

NAFTA1. Article 1110 Provides for mandatory compensation for takings that affect foreign investors

a. Protects foreign investment, as they are insulated against a taking by foreign powerb. Self-interest can be the sole consideration in finding a cause of actionc. Metalclad: Depravation of a reasonably-to-be-expected economic benefit of property

through legislation even if not to the obvious benefit of the state constitutes a takingi. Contrast from Canadian Law where economic benefit doesn’t constitute a taking

ii. NAFTA applies to Canada, and thus provides foreign companies in Canada more protection than Canadian ones (compare Metalclad to CPR)

iii. However, SD Meyer states A1110 requires “depravation of ownership rights”

Boundaries

Land: Airspace and Subsurface Rights

Above the Surface (ad coelom)1. Cujus est solum – “whoever owns soil owns up to the heavens and down to the flames” (Didow)

a. Restricted in Bernstein and clarified in Didow to meet modern needsi. Rights of an owner are limited to such a height as is necessary for the ordinary

or potential use and enjoyment of his landii. Above that height, and the owner has the same rights to the air as rest of public

2. s.141(1) Land Title Act – Landowner can deposit an “air space plan”, create air space parcels and obtain indefeasible titles; s.141(2) – Air space parcels can be dealt with like title land (eg. sold)

Below the Surface (ad inferos)1. Latin maxim is restricted if the entrance of subsurface property protrudes into a neighbours

subsurface even when they cannot derive any benefit from that subsurface territory (Edwards)2. John Sprankling: only what is usable (1,000 feet down) is landowners, everything else is public

a. An application of the Bernstein rule to subsurface ownership

Economic Perspective1. Dissent in Edwards relates to the economic and desert justifications for private property2. Coase Theorem - Economic function of law is to influence prices paid for various commodities

Mines and Minerals1. Ownership of surface does not necessarily include rights to mines and minerals found below

a. Ex. BC Land Act s.50 exempts landowner of minerals & natural resources ownership below his land; the minerals are severed from the surface property rights

2. Three main tests to see whether a mineral belongs to the Crowna. Vernacular Test – Vernacular meaning over a scientific one

i. Whether it was regarded as a “mineral” by miners, commercial people etc.ii. Has been accepted in every Canadian case but one

b. Purpose and Intentions Testi. “Mines” and “minerals” are ambiguous terms, susceptible to limitation or

expansion depending on the intention they are used within the statutec. Exceptional Occurrences Test

i. Only exceptional or rare substances are “minerals”, not ordinary rocks

Lateral Boundaries1. Four conditions are required for neighbours to have a conventional boundary (Grasett)

a. Must be adjoining the land ownersb. Owners must have uncertainty about location of dividing line between propertiesc. Owners must agree on a division lined. Owners must both recognize the division line as a common boundary

2. If neighbours can’t determine their land boundaries, conventional line doctrine used (Robertson)a. Upon a dispute two parties agree on a line to serve as a boundary b. One party builds to the line, estops other party from denying it is the true boundaryc. Recognition can be oral, written or behavioural, but evidence in support must be cleard. Onus of proof on party claiming ownership by virtue of the conventional line

3. A conventional line cannot be used where an explicit deed or plan contradicts agreement (Bea)

4. If parties can’t determine boundary because they made no inquiries or attempts to discover it, the boundary cannot be set by agreement (Bea)

5. Excavators are strictly liable to landowners in damages relating to support of land cases (Byrne)a. Merely removing support does not give rise to cause of action (Bullock Holdings)b. Due diligence may be used as a defence if the landowner was the owner at excavation,

and the land has decayed while in possession of a new owner (Blewman)c. Rights to support may be waived by agreement (Fuller)

Water Boundaries1. Ground water – Water below surface of land

a. Common property, until the Crown issues a license (s3 Water Act)2. Stream – Natural water source of water supply

a. All belongs to the Crown (s.2 Water Act)3. Non-Ground water use is an offence without authority allowing it (s42(1) Water Act)

a. Exception: s42(2) Water Act allows for unrecorded water to be used for domestic uses4. Land attached to tidal rivers has ownership up to the mean high watermark

a. Land below belongs to the Crownb. Area between m.high watermark and land is Crown land referred to as the foreshore

Riparian Rights1. Riparian Rights regard what rights landowners who live on tidal rivers have to the foreshore

a. Riparian Land is owned by the Crown since it is part of the foreshoreb. Rights attach to (1) access, (2) ordinary use rights (for husbandry/domestic uses), (3)

emergency use (to prevent from flooding), (4) extraordinary use (but flow of river can’t be diminished)

c. Rights are assumed to exist unless expressly taken away by statute (Steadman)d. There are no rights to build improvements on foreshore without permission (Murray)

2. If a non-tidal stream runs through land, landowner owns the bed of the stream unless reserved3. If a non-tidal stream forms the boundary between lands, ad medium filum aquae – People with

land attached to non-tidal streams presumed to have boundary running to the centre of streama. s.55 Land Act – ad medium rule abolished, Crown decides how far property extends

i. s.56 – Abolishment does not apply to title vested by ad medium before 1961b. Maxim does not apply where land is under federal titlec. Navigable rivers are considered federal title (Nikal)

i. True even if some sections of a river are unnavigable, ii. Consider the entire length of the river: if the river is navigable above and below

the area, it should be considered navigable as a whole

Fisheries1. Rights to fishing are not included in property rights (Nikal)

a. Crown holds right to fish in navigable waters, which it distributes as a public right

Accretion1. When land is bounded by water, changes to the shoreline will inevitably occur

a. Land mass may be reduced by erosion or flooding2. Doctrine of Accretion: Where changes are gradual, the changes in title will follow those natural

changes (Nastajus)a. Does not apply where there are substantial and recognizable changesb. Where there is recession of water, newly exposed land must be connected to riparian

(water-bounded) land to support accretion claimc. A new island will be property of the owner of the lakebedd. Policy: We want to give owner riparian benefits to water access (Cox)

i. We should mitigate the hardship of a sudden change in title (Cox)e. Objection: It will always be a grey area as to what is “imperceptible”

3. Avulsion (sudden movements) causing boundary changes means the boundary remains

Fixtures1. When chattel becomes a fixture, it isn’t personal property: title is subsumed into realty title2. Sharpe test determines whether something is chattel or fixture: (La Salle)

a. Degree of Annexation (more attached, more like fixture; not necessarily permanent)b. Object of Annexation (intended to enhance the land, more likely it’s a fixture)

3. Tennant Fixtures: The tenant can transform fixtures he installs to chattels before lease expires so long as there’s “no serious injury to the freehold” if installed: (Frank Georges)

a. For the purpose of carrying on a tradei. Exception: Agricultural fixtures are excluded (Elwes)

b. To be ornamental in nature or for the purpose of domestic convenience4. Owner of a fixture on leased land must extract a fixture at the end of a K or it continues to be

property of the leasee (Diamond Neon)

Transformation of Chattel Ownership1. Fixtures are concerned when chattels are joined to realty2. Commingling/Intermixture – Goods of A combined with goods of B (eg. apples from both mixed)

a. Innocent party/parties insured to the maximum extent possible but they must (Glencore)i. Identify original good in the new commodity (Indian Oil)

ii. Show new good is substantially composed of original goods (Indian Oil)b. Innocent party will either get fair share or everything (Glencore)

3. Accession – Goods of A and B are combined to create a new good (eg. parts to form an engine)a. The principal is the owner of the entire thing (McKeown)

i. Questions linger about restitution for those with accessed goodsii. Principal can be determined by what good is being worked on

iii. Four part test to determine whether accession occurred (Thomas)1. Injurious removal – Can you remove chattel without damage2. Separate existence – Has there been complete incorporation so there is

no longer identity of the chattel?

3. Destruction of Utility – Accessed If removal destroys chattel’s usefulness 4. Degree and Purpose of Annexation – Depends on context

4. Alteration –Goods of A are totally transformed (eg. metal poles made into an elaborate fence)

Unjust Enrichment1. Three principles for unjust enrichment (Gidney)

a. An enrichmentb. A corresponding deprivationc. Absence of any juristic reason for enrichment

i. Juristic reason - “Explanation based upon law for the enrichment of one at the detriment of another”

1. Eg. No prior association between original owner and plaintiff

Tangible and Intangible Resources1. Tucows three part test to determine existence of a property right (via Kremen):

a. Interest capable of precise definitionb. Capable of exclusive possession or controlc. Capable of giving rise to a legitimate claim for exclusivity

Copyrights1. Copyright must add some expressive work to the human repertoire (Mattel)2. Copyright is a balance between the author and broader society (Theberge)

a. Too many rights to artist limits free flow of ideas in societyb. Too few rights to artist discourages artists from workingc. We want to protect artists’ creations, without denying free flow of ideas in society

3. Theberge hurdles to claim copyright infringementsa. Plaintiff must meet statutory requirements for a copyright (defined under Copyright Act)b. Plaintiff’s Copyright Act protected economic or moral rights must have been violated

i. Economic rights – deal with sole right of distribution from sale of work1. Can be purchased: author not necessarily the owner2. s.3(1) Copyright Act gives owners right to reproduce work in any

material form3. Moving ink to canvas doesnt qualify as fixation/reproduction (Theberge)

ii. Moral Rights – Work is extension of artist, possesses a dignity worth protection1. Violated if work modified to harm author’s honour or reputation (Snow)2. If moral rights are violated, artist can reach across economic ownership

Patents1. Patent must invent new & useful thing; premised on labour-reward theory of property (Mattel)2. s.42 Patent Act gives patent owner full enjoyment/monopoly granted by the patent (Monsanto)

a. Includes exclusive rights to all commercial benefits and control over use of patenti. To “use” patent there must be deliberate and intentional activity

3. Patent to an essential element of something applies to the whole of that thing (Monsanto)

Trademarks1. Trademarks are a benefit to the public, assuring customers they’re buying from a trusted source2. Trademarks are infringed when using the same name garners confusion in the marketplace

a. There are 5 factors to determine whether marketplace confusion would occur (s.6(5) Trademark Act, used in Mattel) Note: list is not exhaustive

i. Inherent distinctiveness of trade-mark and how well they are knownii. Length of time trademark has been in use

iii. Nature of the wares, services or businessiv. Nature of the tradev. Degree of resemblance between things in appearance, sounds or ideas

Cyber Trespass1. Domain names are intangible property: passes Kremen test for property right: (Tucows)

a. Interest capable of precise definitionb. Capable of exclusive possession or controlc. Capable of giving rise to a legitimate claim for exclusivity

2. Domain names are subject to the right of first occupancy3. Trespass to chattels requires injury to chattel or rights associated to it: (Intel)

a. Physical or threatened harm to the chattel ORb. Actual or threatened obstruction of chattel’s basic function

i. Sending many emails is only a trespass where there is interference with computer system’s functioning (Intel)

4. ICANN Resolution held an initial allocation of a domain name can reallocated if: (Molson)a. Domain name is identical to a trademark where complainant has rightsb. Respondent has no rights or legitimate interests in respect of the domain namec. Domain name has been registered or is being used in bad faith

Concept of Possession

Basic Definitions1. Possession is about proving:

a. animus possidendi (Intention to possess and intention to exclude others)b. factum (physical control)

Conversion1. Conversion is the wrongful exercise of dominion over the personal property of another

a. Even where defendant lawfully acquired property, there can still be a conversion2. Test for possession: did plaintiff sufficiently reduce object to exclusive dominion and control?

a. Exception: Constructive possession will suffice for manual control in some cases i. If actor takes significant steps to achieve possession of abandoned property, but

fails due to unlawful acts, there’s a pre-possessory interest in property (Popov)ii. If actor wounds an animal and doesn’t abandon pursuit theres possession (Post)

1. Known as the law of “first occupancy”3. After two-year limitation period is passed, if the chattel is then transferred, the limitation period

begins anew since there is a fresh conversion (Barberree) – the view is rejected in USA (O’Keeffe)

Acquisition of Title by Possession: Squatters1. Squatter – Someone without title and without right to a given piece of land enters it (Bentley)

Adverse Possession1. Central Question: Did plaintiff’s possession challenge the legal owner’s right to make use of the

property the owner wished to?a. Use Pflug test for claiming possessory title (Keefer)

i. Actual possession for statutory period1. “open, notorious, peaceful, adverse, exclusive, actual & continuous” 2. Claimant used land as owner would (Teis)

ii. Possession was with intention of excluding others (animus possidendi)iii. Discontinuance of possession by the owner for the statutory period

2. There is a second test, that there must be proof of inconsistent use in adverse possession casesa. Use that is “inconsistent with owner’s enjoyment” (Leigh)b. Test does not apply in cases of mutual mistake (Teis)c. Criticism: Adverse possession encourages a “dispossession” of a true owner (J.A. Pye)

i. Should be factum (possession) combined with animus possidendi (intention)d. Quiet entitlement rationale: “use it or lose it”

3. s.36 Property Law Act –Encroached land can be (36a) given as an easement to encroacher if they satisfy statutory period; (36b) vest title in encroacher; (36c) order encroacher away

4. s.12 Limitation Act – No title can be acquired by adverse possession, except as allowed by s.145. s.24 Land Title Act – Title by prescription is abolished (no easements from encroachment)

a. Easement – A privilege without profit (eg. right-of-way over someone’s land)b. Title by Prescription – A way of obtaining an easement via adverse possession

i. s.8 Land Act – Title by prescription is abolished on crown land

The Relative Nature of Title: Finders1. True finder cases (something is lost) finder acquires right against all except true owner (Trachuk)2. In recovery cases (something is hidden), finder acquires possessory title subject to rights of

owner/occupier of private land (Olinek)a. An owner/occupier must have a measure of control to prevent interference

3. In abandonment cases, finder must prove a: (Charrier)a. Voluntary relinquishment of an object and

i. “Giving up, a total desertion and absolute relinquishment” by owner (Stewart)ii. Inference made with passage of time, nature of transaction & owner’s conduct

b. An intention to have object go to the first person taking possession

i. Abandonment complete when theres an “occupation by a newcomer” (Stewart)4. ex turpi causa – Finders cannot gain due to wrongdoing (Baird)

a. Criminality extinguishes finders rights/possessory title5. Obligations of finder: (British Airways)

a. No rights unless it had been abandoned/lost and he takes it under his controlb. Limited rights if he is trespassing or has a dishonest intentc. Legitimate finder lacks absolute right, but has right to keep against all but ownerd. Finder working as servant/agent acts on behalf of employer for sake of chattele. Take all reasonable measures to acquaint true owner with whereabouts

6. Rights and liabilities of an occupier (British Airways)a. Land Occupier has rights superior to finder over chattels in or attached to landb. Building Occupier has rights superior to finder over chattels upon or in but not attached

to building only if, before chattel was found, he manifested intention to exercise control over the building and things which are upon or in it

c. Take all reasonable measures to acquaint true owner with whereabouts

Transfer of Title Through Delivery: Gifts

“Gifts, Bargains, and Form” - J.B. Baron1. Is there a reason to treat market bargains as more worthy of legal intervention than gifts?

a. Gifts and bargains are very similar exchanges, but have different legal principles

Inter Vivos Gifts1. Three methods for making a valid gift of chose in possession under inter vivos

a. Deedb. Declaration of Trustc. Delivery

2. In absence of deed or declaration, gift will be proven by delivery, and 3 essential elements:a. Intention of donor to give

i. Intention must be made manifest and expressed with certaintyb. Intention of donee to acceptc. Delivery of the gift

i. Must be something that constitutes an act of delivery or a change in possession1. Requires surrender of control and that donor did everything possible to

vest title in donee2. Words sufficient, but not necessary in “unusual circumstances”

a. Where constructive delivery is sufficient:i. No direct handing over subject-matter, but means of

control are transferred (ex. giving keys)ii. No change of factual possession, but in capacity of that

person’s possession (ex. possession before delivery)ii. At any time before delivery is completed, the gift may be retracted

iii. Symbolic delivery typically not sufficient

Mortis Causa Gifts1. Three requirements for making valid gift of chose in possession under mortis causa: (Re Bayoff)

a. Impending death from an existing perilb. Delivery of the subject matter

i. Court will infer from actions where there is no actual deliveryii. Transfer of partial control that may be ineffective to perfect incomplete gift can

be adequate for a mortis causa (Kooner)c. Gift takes effect upon death and reverts to owner if they recover

i. Donor may revoke gift at any time before death

Common Law Estates1. Three forms of freehold estate

a. Fee Simple – closest to absolute ownershipb. Life Estatec. Fee tail – Inheritable right of more limited duration

Resolving Disputes1. If there is a contradictory intention in the will, courts will try to ascertain dominant intention

a. Plain language trumps almost everythingi. Ex. where testator uses plain language to give life interest, it is not enlarged by

ability to encroach on capital for their proper maintenance (Re Taylor)ii. The power give estate inter vivos can create absolute interest (Townshend)

2. Court will try to reconcile two apparently conflicting provisions of a will rather than absolutely ignoring one provision or another (Martini)

Estate in Fee Simple1. Fee simples cannot have any limitations (Re Walker)2. “To X” – Words of purchase: describes the intended recipient of the property3. “and her heirs” – Words of limitation: delineate extent of rights conferred on X

a. “Magic words” of limitation are not required to give a gift of fee simple, if there is a clear intention for a fee simple, considering the instrument as a whole (Thomas)

i. Repeated in s.19(1) Property Law Act4. BC Land Title Act s.186(5) – If there’s no express words of limitation, transfer is in fee simple

a. BC Wills Act s.24 – If there’s no contrary intention in the will and no words of limitation, transfer is in fee simple

“Property in Land: Fee Simple, the Advantages of Perpetual Land Ownership” - R.C. Ellickson1. Justification for perpetual land ownership is that it is a “low transaction cost device for inducing

mortal landowners to conserve natural resources for future generations”a. Perpetual ownership forces people to take better care of the land they own

2. “Inherent efficiencies of perpetual private land rights” have led to their widespread popularity

Life Estate3. Duration of a life estate is determined by reference to continued existence of a life or lives

a. Life tenant can use or transfer pur autre vie (for duration of their lives)4. Life estate holders are responsible for regular care (incl. fire insurance) of the property

a. Fee simple holders are responsible for major repairs (incl. repairing retaining walls)5. Life tenant can use the property as if it were their own

a. Fee simple owner has no rights until property returns to them (Hurst)

Waste1. An act that causes injury, or does lasting damage to the land; there are 4 categories

a. Ameliorating – Results in a benefit to the land, may interfere with non-monetary interests of subsequent owners [Unlikely court will award damages]

b. Permissive – Damage relating from failure to act [Not impeachable unless explicit duty]c. Voluntary – Damage from a positive wrongful action [Liable unless explicit term in grant]d. Equitable – Waste amounts to destruction [Tenant can be restrained by injunction]

2. s.11 Law and Equity Act – Presumption against legal right to commit equitable waste

Life Estates Arising by Operation of Law – “Homestead Legislation” W. Renke1. Dower – Life interest of a surviving wife

a. Life interest in one-third of all lands owned at any time during marriage by her husbandb. Even lands sold by a husband remained subject to wife’s dower interest

i. Unless wife barred her rights, or husband conveyed lands barring dowerc. Dowers eliminated because they impaired freedom to transfer lands and hurt farmwives

2. Curtesy – Life interest of surviving husbanda. Life interest in all lands owned by wife during marriage that had not been disposed of

inter vivos or by will so long as a child had been bornb. Curtesy abolished

3. Homestead legislation – Replaced dowers, based on American homesteads:a. Fetters ability of owner spouse to dispose of homestead without consent of non-ownerb. Confers a life estate on the spouse after the death of the ownerc. Exempts the family home from seizure of unsecured creditors

Fee Tail1. Passed to the heirs of the first taker until line of decent became extinct

a. Unlike a fee simple where the line of decent didn’t matter, heir could be anyone2. Owner could only transfer his present right to possess, he couldn’t convey it in fee simple

a. Land was a family asset, it was designed to protect the “wealth of the well-to-do”3. No longer exists in Canada, simply becomes fee simple (s.10 Property Law Act)

Estates in Personality1. Estates in applicable to personality, chattels can be owned outright2. An inter vivos gift is related in law as absolute

a. Temporary interest in chattel (bailment) limits absolute quality

b. Dividing legal title of personality under a will is valid (eg. giving someone an immediate right and someone else a future right is legitimate)

3. If someone dies with no heirs, property becomes vested in the crown as bona vacantia

Cases

Cases: Nature of Property

Yanner v Eaton (HC-AUS, 1999) [pg. 12]1. Facts: Appellant used traditional harpoon to kill two crocodiles. Appeallant charged for violating

Fauna Conservation Act. Act states that Fauna are property of Crown and under their control.2. Decision:

a. Property is the legal relationship one has with something that refers to a legally endorsed concentration of power over it recognized in law and a control over its access.

b. Property in fauna conferred on the crown cannot be equated with a private propertyi. They have property with no responsibility

c. Property is more than exclusion: “The state has less than absolute ownership”i. The state has mere possession which include various rights of control

3. Dissent: a. Property is the right between owner and object in reference to the owner’s ability to

exclude all others from the objecti. Single-Variable essentialism

b. The statute, so long as it is enforced, gives the Crown all fauna as propertyi. No one had any right to pry those property rights away, as appellant had

4. Held: For the appellant5. Ratio: Property is construed as more than the right to exclude: a legally enforced concentration

of power

Harrison v Carswell (SCC, 1976) [pg. 19]1. Facts: Defendant was an employee of a business in Polo Park. She was on strike on a sidewalk in

front of Polo, manager (plaintiff) asked that they leave or they will be charged with trespass. Defendant continued and was charged.

2. Trial Court: Convicted; MB Court of Appeal: Reversed3. Decision

a. No distinction between this case an Peters v The Queeni. SCC held shopping mall had “sufficient control of the common areas of the mall”

ii. This decision is based on the right to control entry of the general publicb. If shopping mall had control, then they are within their rights to charge for trespassc. Balancing public rights and private rights

i. Argument that court should see the right of a person to lawfully picket peacefully as holding “greater social significance” than property rights of an

owner of a shopping centre is tantamount to asking court to run against precedent just because they don’t like the result

ii. Property rights must be defended, especially when there is no statutory exception in this case

iii. If Canada will define when trespass is not a crime, it must be through legislature4. Dissent

a. There is distinction between Peters since the question asked could be interpreted to ask whether owner had divested possession to the point where “there could be no trespass in any circumstances.

i. Peters is therefore not a controlling authorityb. Public areas, even if owned privately, do not enjoy the same rights as private property

i. The mall, being freely accessible, has empowered public with a right of entry, and a right to remain

These Rights are only revocable by misbehaviour or unlawful activityii. A public shopping center cannot enjoy the same considerations underlying the

protection of private residences since privacy concerns are dissimilariii. Picketing holds no actual challenge to the owner’s interests or titleiv. Mall owners also have no right to discriminate, and therefore no right to

exclude people on “mere whim”v. The picketer is entitled to the privilege of entry as both a memberof the public,

and an employee involved in a lawful, peaceful labour disputec. Court has a balancing role to play

i. There is a “relativity of rights”, or a hierarchy of interests, property rights must be balanced by the rights of others

ii. Those engaged in peaceful picketing , pursuing legitimate claims are higher in the order than an owner of an unrestricted public area

d. Contexts change, and thus we should find a more reasoned adaptation of precedent (satre decisis)

5. Held: For the respondent6. Ratio: Property rights may be different depending on the uses of private property, if they’re

used for public ends, owners do not enjoy the same rights as dwelling houses

Cases: Property in Perspective

Calder v British Columbia (Attorney General) (SCC, 1973) [Moodle]1. Facts: Appeallant claim Aboriginal title over piece of land in BC, that had been present before

Confederation and had never been extinguished2. Trial: Nishga rights had been extinguished; Appeal: Upheld; Appeal: Upheld by 4-3 Split3. Majority

a. Nishga could delineate, destroy, exclusively possess and inheret propertyb. Rights to alienation was complicated as land was a collective right that could not be sold

c. Agrees that Aboriginal title had existed, but was extinguished unilaterally through government’s exercise of control over the land

4. Dissenta. There must be more than control to demonstrate the rights were extinguishedb. Provincial government had no constitutional right to deal with Aboriginals

5. Held: For the Respondent6. Ratio: Recognition of Aboriginal Title at some point in history, and that government exercises

extinguish land claims

International News Service v. Associated Press (USSC, 1918) [pg. 47]1. Facts: Complainant (AP) and Defendant (INS) are both news collectors in competition with each

other. Collected news is distributed to newspapers. Defendant collected news by complainant and reproduced the news as their own work. Complainant seeks injunction

2. Trail: Complainant; Appeal: Complainant3. Majority

a. Test to determine injunction legitimacy:i. Is there property in news

ii. If there is property in news collection, is there still property after the first publication where the information is spread

iii. Does defendant’s course of conduct constitute unfair competition1. What unfair business constitutes must be defined

b. Each party is under a duty to conduct their business in a manner that doesn’t unnecessarily or unfairly injure the other

c. Current events are common property shred between news service and commons persond. News of current events are quasi-property between the news services themselves

i. Acquisition and transmission require an elaborate organization and expenditure of money, skill and effort and requires freshness, regularity, reliability

ii. Unfair for defendant to take interest generated by another’s’ labour and profit from it since it is not burdened with expense; “to reep what it has not sown”

iii. The interest in misappropriating proves a value in the gathering of news4. Held: Complainant, unfair competition by defendant by misappropriation of complainants

quasi-property interest in the news it collected and misrepresenting it as their own5. Dissent:

a. Value doesn’t create propertyi. A person is not excluded from using any combination of words merely because

someone has used it before, regardless of the amount of labour put into itb. Property depends on exclusion by law from interference

6. Ratio: In business, he who has fairly paid the price should have the beneficial use of the property”

7. Class Issues Discussed: Moral justification, What is property, and how does the category change

Victoria Park Racing v. Taylor (HC-AUS, 1937) [pg. 54]1. Facts: Plaintiff owned racetrack & charged admissions to those who placed bets. Defendant was

a neighbour, built platform to view races and odds. Defendant broadcasted info to people in off-track betting. Plaintiff argues ticket sales were lower since people were just listening on radio and Taylor was profiting at expense of plaintiff

2. Majoritya. Mere fact damage results is insufficient for cause of action: A party can damage

another’s property where the law permits iti. No legal right of the plaintiff has been violated, nor any wrong done to him

ii. You do not interfere with the use and enjoyment of your neighbour’s property simply by overlooking their property

b. You can’t own a spectaclei. The idea of quasi-spectacle in this case would deny people the right of opening

their eyes and describing what they see, which is absurdii. No nuisance since nothing like a general right of privacy exists

1. People can see what is happening on their neighbours yards, if Plaintiff wants to block views, he should build a fence

3. Dissent:a. Rich: Nuisance is a use property in an improper or non-natural way if it curtails a

neighbour’s legitimate enjoyment of his property. i. Plaintiff cannot enjoy the money-making capacity of its property since its

exclusive right of witnessing the spectacle is spoiledb. Rich: Defendant’s and plaintiff’s rights are related to each other, and limited by each

otheri. Its one thing to overlook a neighbour’s land, but to set up a broadcast facility

goes beyond the normal use of landc. Dixon: Plaintiff has built things to exclude the public, and have right to exclude public

who do not pay from the knowledge of proceedings on the coursei. Defendants proceeded by an unusual use of their land to deprive the

defendant’s land of its value by stripping it of exclusivityii. Defendant are misappropriating and profiting off something created by plaintiff

1. Plaintiff alone should have exclusive rights to its value2. It is unfair for the defendant to broadcast

4. Held: Appeal dismissed5. Ratio: Creation of value (eg. a spectacle) does not by itself create a right to exclude6. Class Issues: How does this case sit with International News Service? Why is it possible to violate

the business interests of another? Is part of the enjoyment of land to make profit off of it?a. No trespass or nuisance in Victoria Park, the courts believe there was in INSb. It should have been held as wrong to collect from plaintiff in Victoria Park, though it was

perfectly acceptable to look around and describe what they saw due to the economic justification of property

Moore v. Regents of the University of California (USSC, 1990) [pg. 60]1. Facts: Plaintiff was treated at UCLA for hairy-cell leukemia, Defendant treated plaintiff and

realised cells had very valuable characteristics for science, he extracted many body components and insisted plaintiff see him personally over several years, and used those cells to develop a “cell line” and was a profitable venture, nothing was given to plaintiff who claimed property rights over the cell line.

2. Majoritya. Plaintiff wished to sue for conversion which requires an interference with one’s

ownership or right of possessioni. There was no interference with a right of ownership or possession

ii. Moore didn’t expect to retain possession of cells following removal, and therefore retained no property interest (and therefore can’t sue for conversion) for three reasons:

1. No reported judicial decision supports Moore’s claim2. California statutory law drastically limits any continuing interest of a

patient in lost cells3. Subject matters of Regent’s patent cannot be Moore’s property

Patented cell line is distinct from Moore’s cellsiii. The genetic material is not unique to Moore, since cells are present in everyone

b. Since there is no conversion, should Conversion Liability be extended? i. No, for three reasons

1. Not to discourage socially useful activities like research due to a constant threat of litigation

2. Problems in this area are better suited to legislative resolution3. Conversion isn’t necessary to protect patients’ rights

3. Dissenta. Property is comprehensive to include everything which one person can own and

transfer to another, extending to every right and interest capable of being enjoyedi. Property is a bundle of rights including those to possess, exclude and dispose

b. The fact that the cells were patented as a cell line does not retroactively correct unauthorized use of them

c. Wrong conclusion to say giving Moore a proprietary interest would hinder scienced. Even if statute limited use and disposition of tissue, plaintiff still retained valuable rights

i. He had the right to do with his own tissue whatever defendants did with ite. It is wrong to exact a commercial exploitation from one’s body matter while patients are

excludedi. It is fundamentally unjust and an infringement on legally protected rights

ii. We condemn unjust enrichment of any member at the expense of another as the parties are not in equal bargaining positions

4. Held: Appeal dismissed on conversion claim5. Ratio: No ownership rights in cells once removed from body because of a lack of precedent, and

statutes opinion on the matter, no cell-line patent because its distinct from cells

a. Court will use policy arguments to deny property rights6. Class notes: In all three cases we see property rights being weighed against each other, and the

concept of unjust enrichment, is it fair to take on none of the burdens or skill and reap the benefits? Or is this fundamentally unjust?

Victoria (City) v. Adams (SCC, 2008) [pg. 130]1. Facts: Legislation prohibits temporary shelters on public property, defendants were camping in

public areas, Defendant argues statute violates s.7 Charter, fewer beds than homeless in Victoria2. Majority

a. Case isn’t about property rights, but prohibiting temporary shelter to protect homelessi. Some people must sleep on public property, whether they’re dry matters

ii. Ban goes further than simply prohibiting harms that would arise from tent cities b. Legislation is not saved by Charter s.1 because the impairment on charter rights was not

minimal, and was disproportionate to the advantages gained3. Held: Bylaw exposes homeless to major health risks; violates s.7 of the Charter, not saved by s.14. Ratio: Sleep and shelter are necessary preconditions to protections in s.7 of Charter: security,

liberty and human flourishing

Pennsylvania Coal Co. v. Mahon (USSC, 1922) [pg.148]1. Facts: Coal company sold surface land with clause protecting future mining rights under land;

Legislation comes into force, which forbids coal mining if It harms structures; coal mining gives defendant notice, defendant fights it saying its prevented by legislation

2. Majority: Legislation cannot prevent mining since it amounts to a regulatory taking of propertya. Making mine commercially impractical is the same as appropriating or destroying itb. A public desire is not enough to deprive someone of their constitutional protections

3. Dissent: Restrictions to protect public health, safety or morals does not constitute a taking4. Held: For Plaintiff5. Ratio: Prevents private owners from bearing public burdens

a. Legislation that denies all land’s commercial value is the same as a taking

Lucas v. South Carolina Coastal Council (USSC, 1992) [pg. 149]1. Facts: Plaintiff wants to develop beachfront properties, legislation deprived him of the ability2. Majority

a. Two areas where regulatory actions are takings and require compensationi. Regulations that compel property owner to suffer physical invasion of property

ii. Regulations that deny all economically beneficial or productive uses of landb. When government asks owner to sacrifice all economically beneficial uses of land for

public good, he suffers a taking due to the idleness of his land3. Held: For Lucas, Statute is not a valid exercise of police power4. Ratio: Government cannot ask owner of real property to sacrifice all economic or beneficial uses

in the name of the common good

Mariner Real Estate Ltd. V. Nova Scotia (Attorney General) (SCC, 1999) [pg. 152]1. Facts: Plaintiff wants to develop beachfront properties, legislation deprived him of the ability,

this time, in Canada2. Majority

a. Principles for de facto expropriation at common law:i. (a) Valid legislation may significantly restrict owner’s enjoyment of private land

ii. (b) Courts can only order compensation where they are authorized by legislationiii. Was regulation lawful? Does Expropriation Act entitle owner to compensation?

b. Extensive land use regulation doesn’t necessarily constitute compensable expropriation c. Only when government action goes beyond reducing property value will courts find a de

facto expropriation: this has happened 3 times:i. Tenner - denial of permit meant denial of mineral rights

ii. Casamiro - Private rights became meaninglessiii. Manitoba Fisheries - Legislation prohibited claimant from continuing business

d. Compensation requires confiscation of all reasonable private uses of the lands in question (basically, interference with ownership)

i. This would require acquisition of the land through expropriation3. Held: For Crown.4. Ratio: Only when owner’s full bundle of rights associated with his property are negated will

there be a de facto expropriationa. Economic value loss is not a loss of land interest, and thus insufficient to prove a taking

CPR v. City of Vancouver (SCC, 2006) [pg. 163]1. Facts: CPR granted Crown land, legislation comes in that designates area as a public

thoroughfare; legislation effectively freezes redevelopment potential, CPR wants compensation2. Majority

a. Test for de facto expropriation:i. Acquisition of a beneficial interest in/related to the property or flowing from it

1. Not met: city only gained assurance that the land would be developed in accordance with its vision(which is not a beneficial interest)

ii. Removal of all reasonable uses of the property1. Not met: CPR can still operate a railway, the only use it was ever put to2. Not met: CPR can lease the land for use inconformity with legislation

b. Legislation can has the power to over-ride the common lawi. If regulation says “this regulation doesn’t ever amount to a taking” then it won’t

3. Held: For Crown4. Ratio: At common law, a taking requires (a) acquisition of beneficial interest in property and (b)

removal of all reasonable uses of the property; also, legislation can negate a taking

Metalclad Corp. v. United Mexican States (NAFTA Tribunal, 2000) [pg. 170]1. Majority

a. Expropriations (or takings) include open, deliberate and acknowledged takings of property

b. Expropriations also include covert or incidental interference which has the effect of depriving the owner, in whole or in significant part, of the use of reasonably-to-be-expected economic benefit of property even if not to the obvious benefit of the State

2. Held: For Metalclad3. Ratio: NAFTA Article 1110 protects foreign investors against regulations that will deprive the

owner (even in significant part) of the reasonably-to-be-expected economic benefit of property

Cases: Boundaries

Didow v. Alberta Power Ltd. (ABCA, 1988) [pg. 176]1. Facts: Defendant builds power lines which partially protrude 6 ft. above plaintiff’s land; Plaintiff

complains he can’t enjoy property as before (ex. He can’t plant trees where the wires are)2. Majority

a. Latin maxim “cujus est solum” says land owner has rights over everything above and below property indefinitely

i. This does not suit today’s world ii. Must restrict maxim without depriving landowner of full enjoyment of property

iii. Bernstein reasonable test restricts maxim:1. Ownership rights are limited to such a height as necessary for ordinary

use and enjoyment of owner’s land2. Above that height, landowner has no greater rights to air than public

b. There are two groups of cases on airspace propertyi. A transient invasion into the airspace above a person’s property at a height

unlikely to interfere with the landowner1. Landowner can’t object to cases where Bernstein test is not disturbed

ii. Permanent structural projections into airspace above a landowner’s property1. Direct invasion interfering with Bernstein test is a trespass2. Court: fits with this case

3. Held: Government interfered with Bernstein test, thus has trespassed on plaintiff’s landa. Poles are at a height that could potentially be utilized by plaintiff

4. Ratio: Adaptation of Bernstein test to include infringing on potential uses of landa. “landowner is entitled to freedom from permanent structures which in any way impinge

upon the actual or potential use and enjoyment of his land”

Edwards v. Sims (KYCA, 1929) [pg. 184]1. Facts: A cave (made a public exhibition) entrance on plaintiffs land but runs under Lee’s land

a. Defendant orders a survey to find out, plaintiff wants an injunction on the order2. Majority

a. Plaintiff has an undivided absolute right of ownership of the propertyb. There are limitations on the Latin maxim “cujus est solum”

i. The cave, however, protrudes into a neighbour’s land

3. Dissenta. Giving ownership in the cave to Lee allows him to reap rewards he did not sow

i. No one is allowed to own what they can’t subject to their own dominionii. You only have rights to underground property which you can exploit

b. The surface land where the entrance of the cave ought to own the entirety4. Held: For defendant. Writ of Prohibition (injunction) is denied5. Ratio: The right of a property owner is not absolute under ones own surface

Robertson v. Wallace (2000, AB-QB) [pg. 204]1. Facts: Boundary between two estates marked by a river on plaintiff’s side & fence on

defendant’s property side, river changes course, leaves more land between fence & river, no one knows where boundary should be

2. Majoritya. Conventional law doctrine

i. Upon a dispute two parties agree on a line to serve as a boundary ii. One party builds to the line, estops other party from denying it is the boundary

iii. Recognition can be oral, written or behavioural; support evidence must be cleariv. Onus of proof on party claiming ownership by virtue of the conventional line

b. Plaintiff bears onus of proofi. No evidence of an agreement, Court looks to evidence of conduct

ii. Conduct must be sufficient that the “line” was recognized to establish the boundary based on a balance of probabilities

1. In this case, first two principles satisfied, fails on condition (iii).3. Held: For Defendant. An inference could not be conclusive evidence on a balance of probabilities4. Ratio: Use conventional law doctrine when neighbours cannot agree on a common boundary

a. Recognition proven on a balance of probabilities; inferences unlikely to yield decision

Blewman v. Wilkinson (1979, NZ) [pg.207]1. Facts: Defendant excavated the land, subdivided it, and sold it to the plaintiff without bank

support, plaintiff built a house, the bank gradually eroded, the plaintiff brings action: interference with natural bank support

2. Majoritya. If there are damages resulting from erosion, the landowner has strict liability action

against excavator (Byrne)i. In this case, the interference with the support occurred when the defendant

owned the land and could do whatever he wanted with itb. Court will not extend strict liability in this case

i. It would be unfair when the erosion happens many years after professionally-recommended excavation

ii. The principle of strict liability in Byrne was very old and not prepared for modern subdivvisions like this

c. Subdividing owner owes a prima facie duty to take reasonable care in any excavation

i. Better to take a negligence/fault approach than strict liability approach3. Ratio: Incorporation of negligence into the determination of liability for support of land cases

a. Due diligence may give rise to a defence in support of land cases

R. v. Nikal (1996, SCC) [pg. 213]1. Facts: Defendant lives on reserve which has Bulkley River flowing through, he was fishing in the

river without a licence and was charged2. Majority

a. Crown only intends to reserve fishery in navigable watersb. In non-navigable waters, the ad medium filum aquae presumption appliesc. But ad medium does not apply

i. Bulkley River is navigable above and below the gorge, thus is navigable1. Consider the entire length of the river from the mouth to the point

where its navigability terminates 2. Even if there are natural breaks in navigation (non-navigable sections),

what matters is the “general character” of the river’s navigabilityii. Fishery is a right severable from the title to the river bed itself

1. Crown reserves all rights to fishery for itself2. Though fishing refers to property rights, it is severable from ownership3. If ad medium applied, fishery reservation makes band by-laws ultra vires

iii. Crown never intended to grant the bed of the river to the bed1. Presumption that the title to the fishery attaches to the river bed title

a. Crown has title of the fishery2. Defendant failed to prove Crown intention or action to rebut this

3. Ratio: Navigability depends on the general character of the river, regardless of natural breaksa. Fishing title is severable from land title

North Saanich District v. Murray (1975, BCCA) [Moodle]1. Facts: Defendant owns front on sea, Plaintiff owns lease on the foreshore, Defendant built wharf

on foreshore in front of the lot, pilings driven into the soil of foreshore, plaintiff alleges trespass2. Ratio: Upland owner has right to unimpeded access across foreshore, he has no rights to build

improvements on the foreshore without agreement of foreshore lesseea. If it floated, it could be an entirely different decision

Steadman v. Erickson Gold Mining Corp. (1989, BCCA) [Moodle]1. Facts: Plaintiff obtained water, piped it into his house, defendant polluted the water, his action

tried to correct problem, but didn’t fix it, plaintiff sues for nuisance and trespass2. Majority

a. Ground water would be lawful to use since its held in common property (s3 Water Act)i. You can use so much your neighbours well goes dry, but not to contaminate it

b. Non-ground water use would be an offence for construction of works without authority and use of water which one was not lawfully entitled to (s42(1) Water Act)

i. s.42(2) is an exception for unrecorded water used for domestic use, so its lawful

c. The issue is that no man can cause a nuisance to his neighbour, including polluting wateri. Saying the water is not their property where/when its polluted is inadequate

d. Riparian rights can exist only for a person lawfully using the wateri. Thus the only way to acquire right to use water is by following the Water Act

ii. The plaintiff’s right to water was weak: lasted only until Crown issued a license 3. Held: For Plaintiff4. Ratio: Riperian rights are assumed to exist, but can be overridden by the Crown

a. Ground water is common property

La Salle Recreations Ltd. V. Canadian Camdex Investments Ltd. (1969, BCCA) [pg. 225]1. Facts: Plaintiff sold carpets to Motel under conditional sales agreement: goods stayed property

of plaintiff until payments were complete, defendant gave mortgage to Motel where property of borrower is security against loan. Motel goes bankrupt, carpets contested between parties

2. Majority: Guidelines for determining whether property is a chattel or a fixture (Stack)a. General Guidelines

i. Articles not attached to the land other than by their own weight aren’t fixtures1. Unless intention shows they were intended to be part of land

ii. Articles affixed to the land are to be considered part of the land (even slightly) are chattels

b. Degree of Annexationiii. Circumstances necessary to alter the prima facie character of chattel/fixtures

are circumstances which show the degree of annexation and object 1. Degree of attachment strengthens presumption it’s a fixture2. Fixtures aren’t necessarily “permanent”

a. Means just remaining where it is so long as it serves its purposec. Object of Annexation

iv. The intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation

1. If object is attached to enhance the land, it’s a fixture2. If its attached for the better use of chattel as chattel, less likely a fixture

d. This casei. Degree of Annexation

1. Degree of attachment is light: carpets removed easily without damageii. Object of Annexation

1. Question: Were the goods affixed to the building for the better use of the building or the better use of goods as goods?

2. Factors: expectation and use fit with building, annexation required, replacement was ultimately expected, there is a market available

3. Annexation was the more effectual use of the building and not for the better use of goods as goods

iii. The plaintiff had no security interest registered in a land registry office1. It could have retained its priority over the carpets if plaintiff had

3. Held: For Defendant. Carpets annexed to land in manner and object to be fixtures4. Ratio: Stack test to find whether property is a chattel or fixture: degree and object of annexation

a. Fixtures aren’t necessarily permanent

Diamond Neon (Manufacturing) Ltd. v. Toronto-Dominion Realty Co. (1976, BCCA) [pg. 230]1. Facts: Uptown (tenant) leases sign from plaintiff, clause says sign is property of plaintiff and not

considered a fixture. Dueck takes over tenancy, resigns with plaintiff. K expires, Dueck vacates, land is sold to defendant. Defendant sells the sign, plaintiff sues for conversion

2. Majoritya. Degree and Object of annexation demonstrate they were fixturesb. Title of the fixture had passed to defendant with purchase of the landc. Defendant’s awareness of the K with Dueck doesn’t matter in this case

i. No obligation for defendant to make inquiries about sign ownership3. Dissent

a. Considering the context, the object of the sign was to be chattelb. Brass plates analogy:

i. A plate with address (permanent information, relative to land, improve usefulness) – intended to be a fixture

ii. A plate with the name/profession of the tenant, hours (relative to particular tenant) – intended to be a chattel

4. Held: For Defendant. Degree and Object of annexation show they were fixtures5. Ratio: Owner must extract a fixture before it passes to a new owner6. Class Notes: Both Diamond and La Salle sought to retain an interest in goods for valid

commercial purposes, only to be thwarted by the operation of the law of fixtures

Glencore International A.G. et al. v. Metro Trading International Inc. (2001, UK) [pg. 241]1. Facts: Defendant mixed oil from plaintiff and blended it with oil from other companies,

defendant held less oil than what it owed, plaintiff wants to recover its share but the ownership of the comingled oil and the transformed product is in question

2. Majoritya. Difference between blending and commingling:

i. Blending takes place where result good is different in nature from originalb. Owner of original goods can recover the altered form if they can identify original in the

new commodity and show its substantially composed of the original goods (Indian Oil)c. If goods can be separated, innocent party is first to ensure they receive their fair share

of the comingled thing (Re Oatway)i. If they cannot be, innocent party gets everything (Jones)

ii. Innocent party can also recover any damages sufferediii. Any questions regarding quality or quantity resolved in favour of innocent party

d. Where multiple innocent parties, it is commonly owned and shared pro rata (Indian Oil)i. Apportion won’t always be equal, account for value and quantity of product

e. Rejects argument that original goods ceased to exist, and defendant owns new goods

i. Dominion, control and possession are not sufficient for property here3. Ratio: A wrongful action resulting in commingling results in the innocent party either getting

their fair share or everything depending on severability

McKeown v. Cavalier Yachts Pty. Ltd. (1988, AUS)1. Facts: Plaintiff owns hull ($1777) agrees with defendant to turn it into finished product,

defendant hires Spartech who spent $24,409, Spartech never receives pay and asserts ownership as plaintiff’s original piece was an accession to the work, plaintiff wants it returned

2. Majoritya. Where there is accession by natural or artificial means, original owner is entitled “by his

right of possession to the property in its improved state”i. When goods of A are attached to a ship of B it may accrue to owner of “the

principal thing” 1. But there is no definition of the principal thing2. Something having more value doesn’t necessarily make it a principal

ii. For accession no attachment needed, just close relationship or interdependenceb. The gradualness of the work being done made it constantly the plaintiff’s property

i. Work was constantly done on hull, not constantly done on the improvementsc. If an accessory can’t be identified or detatched it’s a fixtured. Unique/special chattel make damages inadequate, and requires specific restitution

i. A yacht falls into this category, thus plaintiff owns the entire thinge. Spartech are not an innocent bystander, but must be paid for their work

i. They were in a K, and should have known about plaintiff’s rights3. Held: For plaintiff. He owns the yacht, but must pay for the work done4. Ratio: Through accession, owner of the principal thing owns all if there is interdependence

a. Gradualness helps to determine the principal thing

Thomas v. Robinson (1977, NZ) [pg. 246]1. Ratio: Four tests to determine whether accession has occurred

a. Injurious removal (adopted in Goodrich)i. Added chattels can’t be separated from principal without serious damage

ii. If it can be removed without damage to the principal, no accession even if the removed part “is of vital functional performance”

b. Separate Existencei. Accession arises if there has been “complete incorporation into the point of

extinction of identitity”ii. Eg. brick in a house

c. Destruction of Utility (adopted in Regina Chevrolet)i. Even though the article can be removed without damage to the principal, if it

would destroy the usefulness of the chattel, then it is accessedii. Looks at principal as a functioning unit

iii. Looks at intention of the person who added the part and the purpose

d. Degree and purpose of annexationi. Flexible and empirical so that articles intended to be permanent parts of the

chattel would pass on accession, others could be accessories depending on factsii. Factors include: degree of annexation, nature of chattel, intention

Gidney v. Shank (1995, MBQB) [pg. 247]1. Facts: Plaintiff purchased stolen canoe in dilapidated condition, defendant repaired it, police

removed canoe from defendant, returned it to original owner who was successfully sued for unjust enrichment

2. Majoritya. Principles for unjust enrichment (Rathwell)

i. An enrichmentii. A corresponding deprivation

iii. Absence of any juristic reason for enrichment1. Juristic reason – “Explanation based upon law for the enrichment of one

at the detriment of another” (Hill Estate)2. If there is juristic reason, then the enrichment will not be considered

unjust and no remedy will be availableb. Policy: Inequitable for defendant to retain a benefit where it unjustly gainedc. In this case: There was an enrichment and deprivation, but there was juristic reason

i. Because the original owner had no prior relationship between plaintiff and defendant, there was no injustice in restoration of original ownership

3. Held: Canoe restored to the original owner legitimately4. Ratio: Rathwell test for unjust enrichment, Hill Estate definition for juristic reason

a. No relationship between parties is sufficient for juristic reason5. Class notes: In McKeown there was communication/association, and therefore some knowledge

of enrichment; the ignorance/lack of intent was why original owner received an enriched item

Theberge v. Galerie d’Art du Petit Champlain (2002, SCC) [pg. 252]1. Facts: Plaintiff allowed defendant to reproduce his art onto posters. Defendant lifted ink from

paper & made canvas posters without authors name, plaintiff seized canvases as violations of copyright & moral rights

2. Majoritya. First Hurdle: Does plaintiff meet statutory requirements for a copyright?

i. His talent is embodied “in artistic works of great originality”ii. They are protected without any requirement of “registration or other formality”

iii. In this case: Plaintiff owns of intellectual rights protected by Copyright Actb. Second Hurdle: Have plaintiff’s statutorily protected economic or moral rights been

violated (as defined by the Copyright Act) because of defendant’s actions?i. Economic Rights – More of the focus in Canadian jurisprudence

1. Typically deal with the sole distribution of profit from the sale and re-sale of the tangible expressions of the work, to the exclusion of others

a. s.3(1) Copyright Act gives owners right to reproduce work in any material form

i. Right is balancedii. Too many rights to artist limits free flow of ideas

iii. Too few rights to artist discourages artists from working2. Can be bought/sold: owner of the copyright isn’t necessarily the author

a. In this case: Defendant has economic rights to the work3. Trial Court: Defendant’s acts amount to a “fixation” which violates Act

a. Fixation – An act of reproduction; moving ink to canvas qualifiesi. Distinguishes between general ideas/common property

and a specific work4. SCC: This interpretation of fixation gives too many rights to authors

a. Can’t allow copyright holders free reign over sold itemsb. There was no reproduction in this case, image stayed the same

i. Ex: No fixation when Raphael’s Madonna was lifted and attached to a new canvas

c. Trial court is blurring line between economic and moral rightsi. SCC was concerned that he was using the claim

ii. Moral rights – Work Is extension of artist’s personality, possessing a dignity deserving protection

1. Integrity of the work is infringed when work is “modified to prejudice of the honour or reputation of the author”

2. Ex. Snow: art was sold, but by attaching ribbons to piece, defendant attacked “artistic integrity” (his honour), artist successful against owner

3. In this case: no moral infringement, integrity of the art was unchanged3. Held: For the defendant. Defendant has economic rights, no moral infringement. 4. Ratio: Economic rights contain “sole right to reproduce work…in any material form whatsoever”

a. Moral rights are violated if work is modified to harm the honour/reputation of authori. If moral rights are violated, author can reach across economic rights ownership

5. Class Notes: Balance of economic rights within the public domain limits property rights in the face of broader societal interests, economically efficient to compensate artists and distribute art

Monsanto Canada Inc. v. Schmeiser (SCC, 2004) [pg. 259]1. Facts: Plaintiff developed pesticide-resistant gene for canola, users require formal agreement to

use, defendant found seed he did not plant in his field, but 95% of his field had the gene2. Majority

a. Though patent applies to genes, it is nonetheless validi. Harvard Mouse rejected: seeds and plants aren’t higher life forms

1. Genes and cells of unborn living things are patentable2. Higher life forms, including plants cannot be patented

a. They are not compositions of matterb. s.42 Patent Act gives patent owner exclusive rights to all commercial benefits

i. “Patent owner has full enjoyment of the monopoly granted by the patent”ii. Exclusive rights includes “making, constructing and using” patent

c. Did defendant “use” the patent?i. Did it deprive the inventor of the full enjoyment of the monopoly?

ii. Saving the seed, harvesting it and selling the plants amounts to “utilization”1. Defendant is benefiting

iii. The defendant’s commercial activity involved a patented thing1. No defence to say patented part is only one component of the sold item

d. Defendant’s allegation he had no intent to use makes no sense based on the factsi. He could have removed the seed, but he engaged in deliberate & careful activity

1. He tested, isolated, treated etc, thus he was not an innocent bystander 2. He “actively cultivated” the patented seed

e. Ancient “stray bull” doctrine: farmer’s property rights to keep what comes on their landi. No application: question is not property rights but patent protection

ii. Ownership is not a defence to a breach of the Patent Act3. Held: For plaintiff. No damages awarded since defendant didn’t spray crops with the pesticide.4. Ratio: Patent to an essential element of something applies to the whole of that thing

a. Patent owner has full enjoyment of the patent, including its use & all economic benefits5. Class Notes: Fugacious Substances – When pollen from plant A is blown onto farm B, title to

pollen can’t be claimed by owner of farm A

Mattel, Inc. v. 3894207 Canada Inc. (SCC, 2006) [pg. 272]1. Facts: Defendant is a restaurant called “Barbie’s”, defendant tried to trade-mark name for

restaurant & catering, plaintiff sues for trademark infringement, says name confuses customers2. Majority

a. Trademark, unlike a patent, need not be usefuli. It’s a benefit to public, assuring customers they are buying from a trusted source

ii. If using the same name for a difference service won’t cause confusion trademark holder has nothing to worry about

1. If it’s unlikely that casual customers will make a connection between Mattel’s product and defendant’s restaurants there is no infringement

b. Trademarks are about fairnessi. Requires a consideration of public interests and benefits of open competition

c. Test for infringement: based on balance of probabilities is there marketplace confusion?i. Burden of proof is on trademark applicant to show there would be no confusion

1. No consideration of mens rea, if someone tried and failed to confuse the marketplace, it is still not a trespass

ii. 5 Factors to determine whether there is confusion (s.6(5) Trademark Act)1. Inherent distinctiveness of trade-mark and how well they are known2. Length of time trademark has been in use3. Nature of the wares, services or business4. Nature of the trade

5. Degree of resemblance between things in appearance, sounds or ideasa. List is not exhaustive

d. Barbie is famous but not in association with defendant’s trademark (fails factor 3)3. Held: For defendant. Market confusion unlikely due to distinct services offered by trademarks.4. Ratio: Trademark infringed when using the same name would cause confusion in marketplace

a. Five s.6(5) Trademark factors to determine whether marketplace confusion would occur

Black v. Molson Canada (ICANN Resolution, 2002) [pg. 278]1. Facts: Plaintiff registered domain name, defendant ordered plaintiff to transfer it2. Held: For plaintiff.3. Ratio: An initial allocation of a domain name can be challenged and reallocated when:

a. Domain name is identical to a trademark where complainant has rightsb. Respondent has no rights or legitimate interests in respect of the domain namec. Domain name has been registered or is being used in bad faith

Tucows.com v. Lojas Renner (ONCA, 2011) [pg. 279]1. Facts: Plaintiff bought 30,000 domain names, including renner.com, name of defendants store,

plaintiff wanted to avoid going through resolution and sought declaration in court2. Majority: To determine if domain names are property run Kremen to determine property right

a. Is it an interest capable of precise definitionb. Is it capable of exclusive possession or controlc. Is it capable of giving rise to a legitimate claim for exclusivity

3. Ratio: Domain names are an intangible kind of propertya. Bundle of rights associated with the domain name satisfies attributes of property since

plaintiff can enforce those rights against all others

Intel v. Hamidi (CaliforniaSC, 2003) [pg. 282]1. Facts: Defendant was sending 35,000 emails criticizing plaintiff’s employment practices,

breached no computer system, caused neither physical damage nor functional disruption, but did cause discussion amongst managers & employees, Plaintiff argues for trespass to chattels

2. Majoritya. Tresspass to chattels requires actual or potential injury to the chattel or to rights in it

i. (1) Physical or threatened harm to the chattel ORii. (2) Actual or threatened obstruction of its basic function

1. Threatened functional harm sufficient if imitation of activity would cause deleterious impact on computer functioning (Bidder’s Edge)

2. Spam cases (Thrifty-Tel) proved interference with computer functioning3. Automated data collection (Bidder’s Edge) also proved interference

iii. In this case: Did defendant’s actions cause or threaten to cause damage to plaintiff’s computer system, or injury to its rights in the computer system?

1. Sending electronic communication doesn’t constitute an obstruction2. Nor is there a danger of more parasites replicating the activity

b. Consequential economic damage not applicable in this case

i. Company trying to block messages, lost productivity is not an injury to the company’s interest in its computers, which were unharmed by defendant

c. Computers are personal property, not realtyi. An unwelcome message through telephone should not be a trespass

3. Held: For defendant. Electronic communication does not fit requirements of trespass to chattels4. Ratio: Trespass to chattels requires damage or impaired functioning. Or interference to the

possessor’s use or possession of, or any other legally protected interest in the property

Cases: The Concept of Possession

Popov v. Hayashi (CASC, 2002) [pg. 293]1. Facts: Plaintiff catches ball, is tackled in process of trying to complete catch, subject to illegal

behaviour, defendant grabbed the loose ball, who has possession, plaintiff brings suit for conversion and trespass to chattel

2. Majoritya. Possession Test: did plaintiff sufficiently reduce object to exclusive dominion & control?

i. However, in some cases possession is acquired before absolute dominion and control is achieved (ex. Hunting, fishing, salvage of sunken vessels)

1. Requires actor to engage in efforts to complete control ii. Possession is a contextual principle – depends on fairness

b. Conversion – Wrongful exercise of dominion over the personal property of anotheri. Wrongful withholding of property can constitute actual interference even

where defendant lawfully acquired propertyii. Conversion must be intentional, but no requirement defendant know the

property belongs to another personc. For conversion, plaintiff must prove he has a property right, thus, that he possessed balld. If an actor takes significant steps to achieve possession of abandoned property, but fails

due to unlawful acts, there’s a legally recognized pre-possessory interest in propertyi. Plaintiff did not achieve full control, but due to a collective wrongful assault

ii. But court does not want to allow unlawful action to alter course of ownershipiii. Defendant did no wrong in acquiring ball, but property had a cloud on its title

1. It would be unfair to award solely to either – divide in proportion to strength of claim

2. Legal claims are of equal quality, thus equally entitled to the ball3. Held: Equal legal claims to ball, profits to be shared equally4. Ratio: If an actor takes significant steps to achieve possession of abandoned property, but fails

due to unlawful acts, there’s a legally recognized pre-possessory interest in propertya. Plaintiff has access to a conversion claim even without exclusive dominion and control

5. Class Notes: Attempt to balance the interests of both plaintiff and defendant

Pierson v. Post (SCNY, 1805) [pg. 303]1. Facts: defendant pursuing fox, plaintiff intervened and took possession, action for trespass2. Majority:

a. Mortal wounding, by not abandoning pursuit, may be deemed in possessioni. There is Intention & certain control

b. In this case there is only pursuit, there is no act that demonstrates certain control3. Dissent: Pursuer need only be within reach or have a reasonable prospect of taking4. Held: For plaintiff.5. Ratio: Degree of control is truly what matters, mere attempts at control aren’t legally relevant

Clift v. Kane (NFLD-SC, 1870) [pg. 304]1. Facts: 1,000 seals left by plaintiff, defendant found them and took them, action for trespass2. Majority: General rule of capture: seals were killed and marked, therefore they were property3. Dissent: If ship lacked ability to recover the belts they were deemed to be abandoned

a. Carcass could escape: one still needs to haul it over the ice, secure it on shipb. So long as the carass is unshipped it is exposed and beyond possession of killer

i. The seal carcass is as if it were still in the waterc. The moment the seal is abandoned, they revert to common stock (Doyle)

4. Held: For plaintiff.5. Ratio: Pierson affirmed in Canada

Keefer v. Arillotta (ONCA, 1976) [pg. 307]1. Facts: Parties dispute a strip between properties, defendant used it for business, plaintiff used it

to park their car, built a garage, rink, defendant had title with easement granted for right-of-waya. Plaintiff claims adverse possession

2. Majoritya. Adverse Possession Question: Did the plaintiff’s possession challenge the right of the

legal owner to make use of the property defendant wished to make of it?b. Plaintiff has burden of establishing right by possession

i. If possession was due to grant (eg. easement) more difficult to show adversityc. Adverse possession requires deprivation of intended use

i. Pflug test for claiming possessory title:ii. Actual possession for the statutory period by the plaintiff

iii. Possession was with intention of excluding owners or those entitled to possess1. Possessory title can’t be acquired by depriving a use never intended2. Failed by plaintiff , no intent to exclude

iv. Discontinuance of possession by the owner for the statutory period1. Failed by plaintiff, no proof of discontinued possession

v. Defendant did not care if defendant used the land, and plaintiff did so sparingly3. Held: For Defendant. Defendant has possession with exception of the garage.4. Ratio: When plaintiff cannot establish intent to exclude others, plaintiff does not establish AP

required to claim by Adverse Possession5. Class Notes: Unnecessary to bring question of deprivation of intended use in this case.

Entitlement Rationale behind adverse possession, “use it or lose it”, yet we are still encouraging others to act wrongfully

Jewett v. Bil (NBCA, 1999) [pg. 315]1. Ratio: In action between X and Y it is irrelevant that Z has rights that trumps both

Teis v. Ancaster (Town) (ONCA, 1997) [pg. 317]1. Facts: Plaintiff occupied municipal land, both mistakenly believed it to be plaintiff’s and treated

as responsible for it, eventually defendant municipality claimed it as their own2. Majority

a. Was the claimants use of land inconsistent with true owner’s intended use?i. Pflug test for possessory title: To claim possessory title must establish:

ii. Actual possession for the statutory period1. “Possession must be open, notorious, peaceful, adverse, exclusive,

actual and continuous”a. Claimant used land as an owner wouldb. Owner has a chance to react to adverse presencec. Adversity – Claimant in possession without owner’s permission

i. Acknowledgement of rights negates adversity1. Offering to purchase is an acknowledgement

2. In this case: Plaintiff meets requirement of adverse possessiona. Intermittent use could satisfy element of continuity (Walker)

iii. Possession was with intention of excluding possession from true owner1. There must be proof of inconsistent use2. Deprivation of use of property the true owner intended to make

a. “inconsistent with his enjoyment of the soil” (Leigh)3. Focus is on intention of the owner, not on intention of claimant4. This cannot apply where there is a mutual mistake about title

a. Owner can have no enjoyment on soil he does not think is hisb. If it applied it would protect deliberate squatters and punish

innocent trespassers5. Only requirement in mutual error is possession without authorization

a. If the claimant thought he was the owner, court infers he intended to exclude others from the land, including true owner

iv. Discontinuance of possession for the statutory period by the owners1. Because inconsistent use fails, so does the test: this point doesn’t factor

b. Since inconsistent use does not apply, did plaintiff have actual possession of the land?i. Yes, claimant thought he was owner, court infers he intended to exclude others

c. In the absence of legislation, court does not give weight to fact land claimed is intended for public use

3. Held: For plaintiff. He proved there was actual possession.4. Ratio: In cases of mutual error, adverse possession does not apply

a. Instead, the test becomes was claimant actually in possession without authorization?

J.A. Pye (Oxford) Ltd. v. Graham (HoL-UK, 2003) [pg. 325]1. Ratio: Criticism of the logic behind the law of adverse possession

a. There will be “dispossession” of a true owner whenever a squatter assumes possessionb. Possession should be factum (sufficient degree of physical custody and control)

combined with animus possidendi (intention to exercise control for one’s benefit)

Bentley v. Peppard (NSSC, 1903) [pg. 326]1. Ratio: Generally a squatter must be in actual possession, but where claimant enters the land

under “colour of title”, possession of part of the land counts as possession of the wholea. Ex. Where legal description in the deed accidentally includes the entire property

Barberree v. Bilo (ABQB, 1991) [pg. 327]1. Ratio: After two-year limitation period is passed, if the chattel is transferred limitation period

runs anew since there is a fresh conversiona. Ex. A refuses to return B’s bike within 2-year limitation period, A sells bike to C, B can

sue C for conversion within a new 2-year limitation period

O’Keeffe v. Snyder (NJSC, 1980) [pg. 327]1. Ratio: In America, the focus is on protection of stale claims, rejects fresh limitation periods

Solomon R. Guggenheim Foundation v. Lubell (NYCA, 1991) [pg. 328]1. Facts: Plaintiff sought stolen art innocently purchased by defendant, defendant argued

limitation period had run2. Ratio: Shifting burden to wronged owner is inappropriate: burden should be on potential buyer

a. It would lead to anomalous results to require museum owners to locate stolen artwork

Trachuk v. Olinek (ABQB, 1995) [pg. 329]7. Facts: Defendants lawfully digging at work, found $75,000, plaintiff argues he was occupier of

the quarter section although he fenced it off from his property, he argues de facto possession of the lands, defendants argue they are entitled to property against all but the real owner

8. Majoritya. Neither has full title to the money, the question is who should have a possessory titleb. Finders acquire no ownership, but acquire a right to keep it against all but true owner

i. “Possession in nine-tenths of the law”ii. Finders who assume control are a “quasi-bailee of the money”, with a superior

claim over all except those with a continuing antecedent claimc. Where something is lost (involuntary parting) - “true finder cases”

i. In British Airways & Bridges, finder able to keep found item over the land ownerii. The finder acquires right against all the world except the real owner

d. Where something is deliberately hidden (no involuntary parting) – “recovery cases”i. Eg. burying something 18 inches below the surface

ii. Recoverer does not acquire the “true finder” rights, but a “possessory title”1. Possessory title only subject to rights of owner/occupier of private land2. This occupier must have factum and animus possidendi

a. In this case: Did Defendant have de facto possession of landse. de facto possession is occupation – “exists where there is a sufficient measure of control

to prevent strangers from interfering”i. Onus of proof on plaintiff: he does not have possession of chattel, but claims it

ii. In this case, evidence does not support plaintiff since area was outside his fence

1. He also did not intend to exclude the defendantsiii. It was the leaser, Amoco, that had the right of exclusive possession

1. They have the strongest claim to the money, but aren’t taking action9. Held: For Defendants. Plaintiff unable to show he occupied the land.10. Ratio: In true finder cases (something is lost), finder acquires right against all except true owner

a. In recovery cases (something is hidden), finder acquires possessory title subject to rights of owner/occupier of private land

i. An owner/occupier must have a measure of control to prevent interference

Parker v. British Airways Board (CoA-UK, 1982) [pg. 339]1. Facts: Plaintiff found gold bracelet, gave it to defendant asking it be given to him if true owner

could not be found, defendant sold the bracelet instead, plaintiff sues2. Majority

a. Onus on defendant to prove they had rights to bracelet before plaintiff found iti. They did not have possession, but claimed it

b. Defendant took insufficient measures to claim proprietary rights over objects in loungec. Law gives owner of land better interest than trespasser, but plaintiff was not trespassingd. Other situations that favour landowner are if chattel:

i. Is underground, attached to realty, or owner intended to appropriate chattele. Obligations of finder:

i. No rights unless it had been abandoned/lost and he takes it under his controlii. Limited rights if he is trespassing or has a dishonest intent

iii. Legitimate finder lacks absolute right, but has right to keep against all but owneriv. Finder working as servant/agent acts on behalf of employer for sake of chattelv. Take all reasonable measures to acquaint true owner with whereabouts

f. Rights and liabilities of an occupieri. Land Occupier has right superior to finder over chattles in or attached to land

ii. Building Occupier has rights superior to finder over chattels upon or in but not attached to building only if, before chattel was found, he manifested intention to exercise control over the building and things which are upon or in it

iii. Take all reasonable measures to acquaint true owner with whereabouts3. Ratio: When person finds lost property in another’s premises, true owner can’t be found, finder

has right to the property unless occupier of the land had expressed an intent of ownership

Baird v. British Columbia (BCCA, 1992) [pg. 340]1. Ratio: ex turpi causa: One should not be able to gain from wrongdoing

a. Criminality extinguishes finders rights/possessory title

Charrier v. Bell (LASC, 1986) [pg. 342]1. Facts: Plaintiff was an amateur archaeologist, got permission of believed plantation owner to

dig, plaintiff says it was first time he found out the guy was caretaker, not owner, kept digging and found relics, plaintiff couldn’t prove ownership, brings action against actual landowners

2. Majority

a. There is proof of dissentb. Abandonment

i. res derelictae – Things voluntarily abandoned by their owner with the intention to have them go to the first person taking possession

1. Ex. Things left on public ways, left for garbageii. Relinquishment of immediate possession is proved

1. “Objective viewing of circumstances” and intent of relinquishment does not result in a finding of abandonment

iii. The intent to let the first person who comes along acquire them is not proved1. Digging up the dead would become a legitimate career

3. Held: For defendants. 4. Ratio: Abandonment requires: (a) Voluntary relinquishment of object and (b) Intention to have

object go to first person taking possession

Stewart v. Gustafson (SKQB, 1999) [pg. 345]1. Ratio: Abandonment occurs where there is a giving up, a total desertion and absolute

relinquishment by former owner2. Abandonment is complete where there is (a) Express intention to abandon, (b) occupation by a

newcomer

Nolan v. Nolan & Anor (VSC-AUS, 2003) [pg. 350]1. Facts: Plaintiff claimed she was gifted paintings before mother’s death, but they were not in

estate itinerary, stayed possession of husband until his death when they were given to others2. Majority

a. Three recognized methods for making a valid gift of a chose in possession inter vivosi. Deed

ii. Declaration of trustiii. Delivery

1. In absence of deed or trust, there are 3 essential elements for delivery:a. Intention of donor to give the giftb. Intention of donee to accept the giftc. Delivery of the gift

iv. Equity won’t assist as volunteer – thus equity will not complete an imperfect giftv. Possession is prima facie evidence of property

1. Possessory title as good as absolute title against all except true ownervi. The burden of proof is on the one alleging a gift had been made

b. Intention to givei. “Intention must be made manifest and expressed with certainty”

ii. Traditionally accompanied by words which evince intention and name object1. Typically they’re sufficient, in “unusual circumstances” not necessary

iii. Where donor and done are dead, caution is particularly necessaryiv. In this case: Intention has not been proven

c. Deliveryi. Must be something that “constitutes an act of delivery or change in possession”

ii. Delivery must relinquish owner of present & future domination/control (Young)1. Continuation of donor control/power is inconsistent with valid delivery

iii. Constructive delivery1. Where nature of goods makes manual delivery impossible or impractical2. Donee is already in possession

iv. Delivery can happen before intent (Stoneham)v. Any time before actual delivery the gift may be retracted

vi. Common property is presumed to be shared, not dominated by one person1. Making it harder for a donor to give as a gift, and subsequently deliver

vii. Unauthorized appropriation by a done does not constitute a valid delivery3. Held: For Defendant. Insufficient proof of intention to give or delivery.4. Ratio: Burden of proof on claimant there was (a) clear intention to give and (b) something that

constitutes delivery

Re Bayoff Estate (SKQB, 2000) [pg. 358]1. Facts: In will, keys to safety deposit box given to Simard “everything there is yours”, paperwork

to access box was insufficient, deceased passed away before proper paperwork could be filed2. Majority

a. Donatio Mortis Causa – Same characteristics as inter vivos, but takes effect after deathi. Three Essential Elements:

ii. Impending death from an existing peril1. Awareness of terminal illness is sufficient

iii. Delivery of the subject matter1. Though he did not actually deliver, court will infer from actions whether

there was a sufficient intention2. In this case: Delivery complete when keys were handed over

iv. Gift takes effect upon death and reverts to donor if they recover1. Donor may revoke gift at any time before death2. In this case: He did not suggest gift only took place if he died

a. Thus, the intention was for an inter vivos giftb. Inter Vivos

i. Intention to give and receive is not in disputeii. Delivery

1. Precedent for delivery of a key being sufficient for delivery of box (Lock)2. Donor gave up control of gift & everything possible to vest title in donee3. So long as intent to make the gift continues until death:

a. Unfulfilled gift is complete if donee becomes executor of will4. In this case: Requirements for delivery satisfied

3. Held: Gift was inter vivos. 4. Ratio: inter vivos delivery can be made even where there is no physical delivery if:

a. Donor surrendered control and b. Donor did everything possible to vest title in donee

Cases: Common Law Estates

Thomas v. Murphy (NBQB, 1990) [pg. 369]1. Facts: Plaintiff retained defendant to act on his behalf for property purchase, defendant says

defendant has acquired title, title came from deed given by residual beneficiaries, grant was to grantees and their successors with specific power of sale, plaintiff maintained because grantees did not receive a grant to themselves and ”heirs”, they could not dispose of a fee simple

2. Majoritya. Clear intention of the grantors to grant a fee simpleb. Consider the instrument as a whole to ascertain the true meaning of its general clauses

i. Clear intention satisfies the requirement of words of limitation in mortis causaii. Inter vivos gifts of fee simples still require “magic words”

3. Held: For defendant. There was a fee simple4. Ratio: “Magic words” are not required if, given instrument as a whole, there is a clear intention

Re Walker (ONCA, 1924) [pg. 374]1. Facts: Testator gave wife “all my real and personal property”, stipulated if estate was

undisposed by his wife when she died, it should be divided, wife died but passed on certain undisposed things, wife can only pass things on if she had a fee simple, and not a life estate

2. Majoritya. Testator’s overall intent is to give a fee simple with limits

i. A fee simple can’t have limitsii. Where there is a fee simple intention but the gift is given with limits, the

testator is “endeavouring to do that which is impossible”iii. If intention is contradictory, courts will try to ascertain the dominant intention

b. What is the dominant intention?i. Consider the entire instrument

1. Testator was trying to give a full gift to his wife2. In event there was something left over, it went to other beneficiaries3. Dominant intention was to give a full gift to his wife

a. Thus there is a fee simple3. Held: Widow has a fee simple based on testator’s dominant intention.4. Ratio: If testators intention is contradictory, courts will ascertain dominant intention in the will

Re Taylor (SKSC, 1982) [pg.377]1. Facts: Testator gave estate to wife during her lifetime, any estate possessed at her death is to be

divided, wife died but divided things differently, is this a fee simple or a life estate?2. Majority

a. Clear words indicating life interest with a power to encroach on capital for maintenance

i. Ability to encroach on capital is technically an absolute interest, but clear words spell out overall intent which is not absolute interest

ii. The “gift over” of power to encroach on capital does not amount to absolute interest on the land

1. In other words, the encroachment on capital technically means widow could use up estate it amounts to absolute interest

a. But just because the same result is possible does not mean the two interests are the same

b. “The possibility that there may be nothing left on which the gift over can take effect does not enlarge the interest”

b. What is the dominant intention?i. Court believes it is the life interest, given the clear words used combined with a

power to encroachii. No inter vivos disposition power, which could create a fee simple (Townshend)

1. Widow only has power to encroach on capital for maintenanceiii. Widow cannot give property away because it doesn’t contribute to maintenance

3. Ratio: “Plain language” is very difficult to overcome in willsa. Where testator uses plain language to give life interest, it is not enlarged by ability to

encroach on capital for their proper maintenance

Christensen v. Martini Estate (ABCA, 1999) [pg. 383]1. Facts: Testator left property to widow as long as needed, then left it to plaintiff who were

friends, but its not clear what widow received and what plaintiffs received2. Majority

a. Many possible interpretationsi. Court will try to reconcile two apparently conflicting provisions of a will rather

than absolutely ignore one or anotherb. Testator intended both parties to benefit from the willc. Preferable interpretation is testator gave life interest without power of encroachment

i. Widow therefore received title to it without encroachment1. Testator intended plaintiff to benefit plaintiffs as well, which isn’t

possible if there is an absolute power of encroachmentii. There is a gift over to the plaintiff

1. Plaintiff should ultimately receive the propertyd. Look to the overall intent

i. Absence of words does not mean absence of intent for those words3. Held: Testator gave a life estate with a gift over. No absolute interest4. Ratio: Court will try to reconcile two apparently conflicting provisions of a will rather than

absolutely ignore one or another

Powers v. Powers Estate (NFLD-QB, 1999) [pg. 393]1. Facts: Testator left life estate to mother, going to brother after her death, and then after his

death to another brother “absolutely and forever”, but its not clear who pays for the expenses associated with the property, the life tenant (from income) or future holder (from capital)

2. Majoritya. Generally life tenant is responsible for paying taxes and utilities from property incomeb. Repairs

i. Regular care (ex. lawn care, interior painting) to be paid by income1. Heat generally falls in this category, but will explicitly overrules this

ii. Property Repairs (ex. replacement of a fence or retaining wall) paid by capitalc. Insurance

i. In common law, no duty for insurance to be paid by either income or capitalii. Trustee may be liable for negligence in performance of duties as a trustee

1. Although Trustee Act does not impose this duty, it is expectediii. If the trustee insures, they will need to pay for the premium somehow

1. US: Premiums are like taxes, thus borne by income (life estate holder)2. Canada: Two views

a. No obligation for life estate, thus borne by capital (fee simple)b. Allocate responsibility to both income and capital equitably

iv. s.18 Trustee Act gives trustee power to do what they would have done if directed by testator

1. Thus, pay the premiums from income (life estate holder)a. Consistent with modern expenses like annual taxes

v. Note: Only s.18 Trustee Act only applies to fire insurance1. Other types of insurance may yield different findings

3. Held: Fire insurance to be paid for by life estate holder.4. Ratio: Regular care of property to be paid from income (life estate holder), property repairs to

be paid by capital

Hurst v. Soucoup (NBQB, 2010) [pg. 399]6. Ratio: Life tenant can use the property as if it were their own until their death

a. Fee simple owner has no rights until property returns to them

You reached the end. You should tell your Mom you love her. She misses you.