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
Contents
The 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 ............................................................................................................................................. 12
Fixtures.................................................................................................................................................... 12
Transformation of Chattel Ownership .................................................................................................... 12
Unjust Enrichment .............................................................................................................................. 13
Tangible and Intangible Resources ......................................................................................................... 13
Copyrights ........................................................................................................................................... 13
Patents ................................................................................................................................................ 13
Trademarks ......................................................................................................................................... 14
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 ............................................................................................................................... 17
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 ................................................................................................................................................ 18
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] ...................................................................... 22
Moore v. Regents of the University of California (USSC, 1990) [pg. 60] ............................................. 23
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 Property
1. 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 something
3. Property rights are created and enforced by an independent source (typically state law)
Private, Common, State, Non Property
1. 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 resources
b. 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 something
a. Qualified members of a group have equal rights to resources
3. State Property is The State’s right to determine rules of access or use
a. Must manage for the public welfare
b. Public don’t necessarily have right of access, but have a right to follow rules
4. Non-property
a. No individual has a duty to refrain from access and use
b. No individual has right to prevent others from access and use
Right to Exclude
“Property and the Right to Exclude” - T.W. Merril
1. Right to exclude others is a necessary condition for property
2. Rights associated with property require some institutional structure
Disagreement on Content of Rights
1. 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 society
ii. 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 property
a. Blackstone: Property is: Possession, use and disposition
b. Honore: 11 conditions must be satisfied to represent paradigm of full ownership
3. Nominalism – Property is a conventional concept with no fixed meaning
a. Hohfeld: Property is whatever government says it is
4. In Canada, the right to exclude may depend on the use of the private property
a. Ex. if private property exists for public ends, owners may not have full rights to exclude
(Harrison dissent)
Property Needs Justification
1. 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 Justification
1. 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 Racing
b. Critiques: Few things produced by labour of only one person, Does not take account of
needs of others, does not account for inheritance or transfer
2. Economic Theory
a. Person who makes greatest profit is person who has greatest power to foresee demand
b. Critiques: Many things (eg. land) are not increased by making them private property,
community benefits sacrificed for private gain
3. 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 Approach
a. Waldron: Individual interest is sufficiently important from a moral point of view to
justify holding people to be under a duty to promote it
i. Interest can be personal preferences, and objectively determined interests
ii. Human interest in ownership is important enough to restrain government action
b. General justifications are closely connected with the rights of freedom and liberty
i. Private property offers security and independence
ii. It allows for self-assertion and recognition, thus free and independent
iii. Promotes stability, discipline and responsibility
iv. 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 poverty
1. Insufficient to give people an opportunity for property, under this model
freedom requires private property
5. 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 Claims
1. 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 Perspective
1. 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 chief
2. 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 human
a. 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 laws
c. “Strict” laws, constitutional in nature [ex. No marriage within a clan]
English Common Law
1. 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 unfree
a. Free tenure – Reciprocal relationships, services exchanged for the lands: 4 types
i. Knight Service – Security, armed service, eventually replaced with money
ii. Serjeantry – Splendor, basically pomp, cooks, butlers, etc.
iii. Frankalmoin – Spirit, religious services, priests
iv. Socage – Subsistence, labour services, agricultural
v. Incidents of tenure
1. Death duties:
a. Escheat – Tennant dies with no heir, land reverts to Lord
b. Relief – Payment made to Lord to live on the land
c. Wardship – Underage heir, Lord controls land until heir is of age
d. Marriage – Lord can “sell” the marriage
b. Unfree Tenure
i. Copyhold – villeins belong to the Lord, have no rights (until much later)
3. Royal courts eventually took over controversies involving land held by lords
4. 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 seller
c. 1540 Statute of Wills – Could divide & inherit land, stopped king from controlling all land
d. 1660 Statute of Tenures – Abolishes feudalism
Types of Property Rights
1. Real/Personal – Can you get it back?
a. Real property – Gives you a real action to recover
b. 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 thing
2. Legal/Equitable
a. Equitable rights
i. Concerned with fairness, balance legal rights
ii. Created with less formality than legal property rights
iii. Are less durable, and more extinguished than legal property rights
b. Both are now merged into one
3. Tangible/Intangible – Can you hold it?
a. Tangible – Right in property that entitles holder to exclusive physical possession
i. Right to possession of goods – Chose in possession
b. Intangible – Intellectual property
i. Personal property right to intangible thing – Chose in action
Property, Class, and Poverty
1. 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 Waldron
1. 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 anywhere
b. 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. Ellickson
1. 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 Rights
1. Wrongs – Theft
2. Consent – sale of goods, bequests etc.
3. Unjust enrichment – Benefiting from someone else’s work
Protections for Property
Takings
1. Courts presume real or personal property can’t be taken by government without compensation
2. Common Law: Crown grant of land is irrevocable, unless there’s an express power of revocation
a. Otherwise clear legislation is required
3. Statutes providing for wholesale confiscation are unassailable as a denial of due process
a. Arthorson: Veterans owed billions by government, but are denied through legislation
i. 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
NAFTA
1. 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 power
b. Self-interest can be the sole consideration in finding a cause of action
c. 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 taking
i. 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 needs
i. Rights of an owner are limited to such a height as is necessary for the ordinary
or potential use and enjoyment of his land
ii. 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 Perspective
1. Dissent in Edwards relates to the economic and desert justifications for private property
2. Coase Theorem - Economic function of law is to influence prices paid for various commodities
Mines and Minerals
1. 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 Crown
a. 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 Test
i. “Mines” and “minerals” are ambiguous terms, susceptible to limitation or
expansion depending on the intention they are used within the statute
c. Exceptional Occurrences Test
i. Only exceptional or rare substances are “minerals”, not ordinary rocks
Lateral Boundaries
1. Four conditions are required for neighbours to have a conventional boundary (Grasett)
a. Must be adjoining the land owners
b. Owners must have uncertainty about location of dividing line between properties
c. Owners must agree on a division line
d. 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 boundary
c. Recognition can be oral, written or behavioural, but evidence in support must be clear
d. 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 Boundaries
1. 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 uses
4. Land attached to tidal rivers has ownership up to the mean high watermark
a. Land below belongs to the Crown
b. Area between m.high watermark and land is Crown land referred to as the foreshore
Riparian Rights
1. 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 foreshore
b. 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 reserved
3. 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 stream
a. 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 1961
b. Maxim does not apply where land is under federal title
c. 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
Fisheries
1. 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
Accretion
1. When land is bounded by water, changes to the shoreline will inevitably occur
a. Land mass may be reduced by erosion or flooding
2. 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 changes
b. Where there is recession of water, newly exposed land must be connected to riparian
(water-bounded) land to support accretion claim
c. A new island will be property of the owner of the lakebed
d. 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
Fixtures
1. When chattel becomes a fixture, it isn’t personal property: title is subsumed into realty title
2. 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 trade
i. Exception: Agricultural fixtures are excluded (Elwes)
b. To be ornamental in nature or for the purpose of domestic convenience
4. 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 Ownership
1. Fixtures are concerned when chattels are joined to realty
2. 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 goods
ii. 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 damage
2. 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 Enrichment
1. Three principles for unjust enrichment (Gidney)
a. An enrichment
b. A corresponding deprivation
c. 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 Resources
1. Tucows three part test to determine existence of a property right (via Kremen):
a. Interest capable of precise definition
b. Capable of exclusive possession or control
c. Capable of giving rise to a legitimate claim for exclusivity
Copyrights
1. 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 society
b. Too few rights to artist discourages artists from working
c. We want to protect artists’ creations, without denying free flow of ideas in society
3. Theberge hurdles to claim copyright infringements
a. 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 work
1. Can be purchased: author not necessarily the owner
2. s.3(1) Copyright Act gives owners right to reproduce work in any
material form
3. Moving ink to canvas doesnt qualify as fixation/reproduction (Theberge)
ii. Moral Rights – Work is extension of artist, possesses a dignity worth protection
1. Violated if work modified to harm author’s honour or reputation (Snow)
2. If moral rights are violated, artist can reach across economic ownership
Patents
1. 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 patent
i. 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)
Trademarks
1. Trademarks are a benefit to the public, assuring customers they’re buying from a trusted source
2. 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 known
ii. Length of time trademark has been in use
iii. Nature of the wares, services or business
iv. Nature of the trade
v. Degree of resemblance between things in appearance, sounds or ideas
Cyber Trespass
1. Domain names are intangible property: passes Kremen test for property right: (Tucows)
a. Interest capable of precise definition
b. Capable of exclusive possession or control
c. Capable of giving rise to a legitimate claim for exclusivity
2. Domain names are subject to the right of first occupancy
3. Trespass to chattels requires injury to chattel or rights associated to it: (Intel)
a. Physical or threatened harm to the chattel OR
b. 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 rights
b. Respondent has no rights or legitimate interests in respect of the domain name
c. Domain name has been registered or is being used in bad faith
Concept of Possession
Basic Definitions
1. Possession is about proving:
a. animus possidendi (Intention to possess and intention to exclude others)
b. factum (physical control)
Conversion
1. 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 conversion
2. 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: Squatters
1. Squatter – Someone without title and without right to a given piece of land enters it (Bentley)
Adverse Possession
1. 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 period
1. “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 cases
a. 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.14
5. 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: Finders
1. 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 title
5. Obligations of finder: (British Airways)
a. No rights unless it had been abandoned/lost and he takes it under his control
b. Limited rights if he is trespassing or has a dishonest intent
c. Legitimate finder lacks absolute right, but has right to keep against all but owner
d. Finder working as servant/agent acts on behalf of employer for sake of chattel
e. 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 land
b. 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. Baron
1. 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 Gifts
1. Three methods for making a valid gift of chose in possession under inter vivos
a. Deed
b. Declaration of Trust
c. 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 certainty
b. Intention of donee to accept
c. Delivery of the gift
i. Must be something that constitutes an act of delivery or a change in possession
1. Requires surrender of control and that donor did everything possible to
vest title in donee
2. 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 Gifts
1. Three requirements for making valid gift of chose in possession under mortis causa: (Re Bayoff)
a. Impending death from an existing peril
b. Delivery of the subject matter
i. Court will infer from actions where there is no actual delivery
ii. 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 Estates
1. Three forms of freehold estate
a. Fee Simple – closest to absolute ownership
b. Life Estate
c. Fee tail – Inheritable right of more limited duration
Resolving Disputes
1. If there is a contradictory intention in the will, courts will try to ascertain dominant intention
a. Plain language trumps almost everything
i. 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 Simple
1. Fee simples cannot have any limitations (Re Walker)
2. “To X” – Words of purchase: describes the intended recipient of the property
3. “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 Act
4. 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. Ellickson
1. 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 Estate
3. 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)
Waste
1. 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. Renke
1. Dower – Life interest of a surviving wife
a. Life interest in one-third of all lands owned at any time during marriage by her husband
b. Even lands sold by a husband remained subject to wife’s dower interest
i. Unless wife barred her rights, or husband conveyed lands barring dower
c. Dowers eliminated because they impaired freedom to transfer lands and hurt farmwives
2. Curtesy – Life interest of surviving husband
a. 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 born
b. 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-owner
b. Confers a life estate on the spouse after the death of the owner
c. Exempts the family home from seizure of unsecured creditors
Fee Tail
1. 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 anyone
2. 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 Personality
1. Estates in applicable to personality, chattels can be owned outright
2. 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 property
i. 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 object
i. Single-Variable essentialism
b. The statute, so long as it is enforced, gives the Crown all fauna as property
i. No one had any right to pry those property rights away, as appellant had
4. Held: For the appellant
5. 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: Reversed
3. Decision
a. No distinction between this case an Peters v The Queen
i. 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 public
b. If shopping mall had control, then they are within their rights to charge for trespass
c. 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 legislature
4. 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 authority
b. 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 activity
ii. A public shopping center cannot enjoy the same considerations underlying the
protection of private residences since privacy concerns are dissimilar
iii. Picketing holds no actual challenge to the owner’s interests or title
iv. 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 dispute
c. 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 respondent
6. 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 extinguished
2. Trial: Nishga rights had been extinguished; Appeal: Upheld; Appeal: Upheld by 4-3 Split
3. Majority
a. Nishga could delineate, destroy, exclusively possess and inheret property
b. 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. Dissent
a. There must be more than control to demonstrate the rights were extinguished
b. Provincial government had no constitutional right to deal with Aboriginals
5. Held: For the Respondent
6. 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: Complainant
3. 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 competition
1. 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 person
d. 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 news
4. Held: Complainant, unfair competition by defendant by misappropriation of complainants
quasi-property interest in the news it collected and misrepresenting it as their own
5. Dissent:
a. Value doesn’t create property
i. 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 it
b. 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 offtrack betting. Plaintiff argues ticket sales were lower since people were just listening on radio
and Taylor was profiting at expense of plaintiff
2. Majority
a. Mere fact damage results is insufficient for cause of action: A party can damage
another’s property where the law permits it
i. 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 spectacle
i. The idea of quasi-spectacle in this case would deny people the right of opening
their eyes and describing what they see, which is absurd
ii. 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 spoiled
b. Rich: Defendant’s and plaintiff’s rights are related to each other, and limited by each
other
i. Its one thing to overlook a neighbour’s land, but to set up a broadcast facility
goes beyond the normal use of land
c. 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 course
i. Defendants proceeded by an unusual use of their land to deprive the
defendant’s land of its value by stripping it of exclusivity
ii. Defendant are misappropriating and profiting off something created by plaintiff
1. Plaintiff alone should have exclusive rights to its value
2. It is unfair for the defendant to broadcast
4. Held: Appeal dismissed
5. Ratio: Creation of value (eg. a spectacle) does not by itself create a right to exclude
6. 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 INS
b. 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. Majority
a. Plaintiff wished to sue for conversion which requires an interference with one’s
ownership or right of possession
i. 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 claim
2. California statutory law drastically limits any continuing interest of a
patient in lost cells
3. Subject matters of Regent’s patent cannot be Moore’s property
 Patented cell line is distinct from Moore’s cells
iii. 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 resolution
3. Conversion isn’t necessary to protect patients’ rights
3. Dissent
a. Property is comprehensive to include everything which one person can own and
transfer to another, extending to every right and interest capable of being enjoyed
i. 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 science
d. 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 it
e. It is wrong to exact a commercial exploitation from one’s body matter while patients are
excluded
i. 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 claim
5. 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 rights
6. 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 Victoria
2. Majority
a. Case isn’t about property rights, but prohibiting temporary shelter to protect homeless
i. 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 gained
3. Held: Bylaw exposes homeless to major health risks; violates s.7 of the Charter, not saved by s.1
4. 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 property
a. Making mine commercially impractical is the same as appropriating or destroying it
b. 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 taking
4. Held: For Plaintiff
5. 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 ability
2. Majority
a. Two areas where regulatory actions are takings and require compensation
i. Regulations that compel property owner to suffer physical invasion of property
ii. Regulations that deny all economically beneficial or productive uses of land
b. 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 land
3. Held: For Lucas, Statute is not a valid exercise of police power
4. 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 Canada
2. 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 legislation
iii. 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 meaningless
iii. 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 expropriation
3. 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 expropriation
a. 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 compensation
2. 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 property
1. Not met: CPR can still operate a railway, the only use it was ever put to
2. Not met: CPR can lease the land for use inconformity with legislation
b. Legislation can has the power to over-ride the common law
i. If regulation says “this regulation doesn’t ever amount to a taking” then it won’t
3. Held: For Crown
4. 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-beexpected economic benefit of property even if not to the obvious benefit of the State
2. Held: For Metalclad
3. 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 land
2. Above that height, landowner has no greater rights to air than public
b. There are two groups of cases on airspace property
i. A transient invasion into the airspace above a person’s property at a height
unlikely to interfere with the landowner
1. Landowner can’t object to cases where Bernstein test is not disturbed
ii. Permanent structural projections into airspace above a landowner’s property
1. Direct invasion interfering with Bernstein test is a trespass
2. Court: fits with this case
3. Held: Government interfered with Bernstein test, thus has trespassed on plaintiff’s land
a. 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 land
a. “landowner is entitled to freedom from permanent structures which in any way impinge
upon the actual or potential use and enjoyment of his land”
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 order
2. Majority
a. Plaintiff has an undivided absolute right of ownership of the property
b. There are limitations on the Latin maxim “cujus est solum”
i. The cave, however, protrudes into a neighbour’s land
3. Dissent
a. 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 dominion
ii. 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 entirety
4. Held: For defendant. Writ of Prohibition (injunction) is denied
5. 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. Majority
a. 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 clear
iv. Onus of proof on party claiming ownership by virtue of the conventional line
b. Plaintiff bears onus of proof
i. 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 probabilities
4. 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. Majority
a. 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 it
b. Court will not extend strict liability in this case
i. It would be unfair when the erosion happens many years after professionallyrecommended 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 approach
3. 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 charged
2. Majority
a. Crown only intends to reserve fishery in navigable waters
b. In non-navigable waters, the ad medium filum aquae presumption applies
c. But ad medium does not apply
i. Bulkley River is navigable above and below the gorge, thus is navigable
1. 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 navigability
ii. Fishery is a right severable from the title to the river bed itself
1. Crown reserves all rights to fishery for itself
2. Though fishing refers to property rights, it is severable from ownership
3. 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 bed
1. Presumption that the title to the fishery attaches to the river bed title
a. Crown has title of the fishery
2. 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 breaks
a. 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 trespass
2. Ratio: Upland owner has right to unimpeded access across foreshore, he has no rights to build
improvements on the foreshore without agreement of foreshore lessee
a. 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 trespass
2. 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 water
i. 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 water
i. 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 Plaintiff
4. 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 fixtures
1. 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 Annexation
iii. 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 fixture
2. Fixtures aren’t necessarily “permanent”
a. Means just remaining where it is so long as it serves its purpose
c. 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 fixture
2. If its attached for the better use of chattel as chattel, less likely a fixture
d. This case
i. Degree of Annexation
1. Degree of attachment is light: carpets removed easily without damage
ii. 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 office
1. 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 fixtures
4. 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. Majority
a. Degree and Object of annexation demonstrate they were fixtures
b. Title of the fixture had passed to defendant with purchase of the land
c. Defendant’s awareness of the K with Dueck doesn’t matter in this case
i. No obligation for defendant to make inquiries about sign ownership
3. Dissent
a. Considering the context, the object of the sign was to be chattel
b. 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 fixtures
5. Ratio: Owner must extract a fixture before it passes to a new owner
6. 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. Majority
a. Difference between blending and commingling:
i. Blending takes place where result good is different in nature from original
b. 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 suffered
iii. 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 here
3. 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. Majority
a. 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 thing
2. Something having more value doesn’t necessarily make it a principal
ii. For accession no attachment needed, just close relationship or interdependence
b. 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 improvements
c. If an accessory can’t be identified or detatched it’s a fixture
d. Unique/special chattel make damages inadequate, and requires specific restitution
i. A yacht falls into this category, thus plaintiff owns the entire thing
e. 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 rights
3. Held: For plaintiff. He owns the yacht, but must pay for the work done
4. 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 Existence
i. 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 accessed
ii. 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 annexation
i. Flexible and empirical so that articles intended to be permanent parts of the
chattel would pass on accession, others could be accessories depending on facts
ii. 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. Majority
a. Principles for unjust enrichment (Rathwell)
i. An enrichment
ii. A corresponding deprivation
iii. Absence of any juristic reason for enrichment
1. 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 available
b. Policy: Inequitable for defendant to retain a benefit where it unjustly gained
c. 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 legitimately
4. Ratio: Rathwell test for unjust enrichment, Hill Estate definition for juristic reason
a. No relationship between parties is sufficient for juristic reason
5. 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. Majority
a. 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 Act
b. 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 resale 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 balanced
ii. Too many rights to artist limits free flow of ideas
iii. Too few rights to artist discourages artists from working
2. Can be bought/sold: owner of the copyright isn’t necessarily the author
a. In this case: Defendant has economic rights to the work
3. Trial Court: Defendant’s acts amount to a “fixation” which violates Act
a. Fixation – An act of reproduction; moving ink to canvas qualifies
i. Distinguishes between general ideas/common property
and a specific work
4. SCC: This interpretation of fixation gives too many rights to authors
a. Can’t allow copyright holders free reign over sold items
b. 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 rights
i. 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 unchanged
3. 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 author
i. 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 gene
2. Majority
a. Though patent applies to genes, it is nonetheless valid
i. Harvard Mouse rejected: seeds and plants aren’t higher life forms
1. Genes and cells of unborn living things are patentable
2. Higher life forms, including plants cannot be patented
a. They are not compositions of matter
b. 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 thing
1. 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 facts
i. 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 land
i. No application: question is not property rights but patent protection
ii. Ownership is not a defence to a breach of the Patent Act
3. 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 benefits
5. 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 customers
2. Majority
a. Trademark, unlike a patent, need not be useful
i. 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 fairness
i. 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 known
2. Length of time trademark has been in use
3. Nature of the wares, services or business
4. Nature of the trade
5. Degree of resemblance between things in appearance, sounds or ideas
a. 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 it
2. 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 rights
b. Respondent has no rights or legitimate interests in respect of the domain name
c. 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 court
2. Majority: To determine if domain names are property run Kremen to determine property right
a. Is it an interest capable of precise definition
b. Is it capable of exclusive possession or control
c. Is it capable of giving rise to a legitimate claim for exclusivity
3. Ratio: Domain names are an intangible kind of property
a. 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. Majority
a. 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 OR
ii. (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 functioning
3. 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 obstruction
2. 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 realty
i. An unwelcome message through telephone should not be a trespass
3. Held: For defendant. Electronic communication does not fit requirements of trespass to chattels
4. 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. Majority
a. 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 another
i. Wrongful withholding of property can constitute actual interference even
where defendant lawfully acquired property
ii. Conversion must be intentional, but no requirement defendant know the
property belongs to another person
c. For conversion, plaintiff must prove he has a property right, thus, that he possessed ball
d. 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 property
i. 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 ownership
iii. 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 ball
3. Held: Equal legal claims to ball, profits to be shared equally
4. 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 property
a. 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 trespass
2. Majority:
a. Mortal wounding, by not abandoning pursuit, may be deemed in possession
i. There is Intention & certain control
b. In this case there is only pursuit, there is no act that demonstrates certain control
3. Dissent: Pursuer need only be within reach or have a reasonable prospect of taking
4. 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 trespass
2. Majority: General rule of capture: seals were killed and marked, therefore they were property
3. 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 ship
b. 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 water
c. 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-way
a. Plaintiff claims adverse possession
2. Majority
a. 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 adversity
c. 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 possess
1. Possessory title can’t be acquired by depriving a use never intended
2. Failed by plaintiff , no intent to exclude
iv. Discontinuance of possession by the owner for the statutory period
1. Failed by plaintiff, no proof of discontinued possession
v. Defendant did not care if defendant used the land, and plaintiff did so sparingly
3. 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 Possession
5. 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 own
2. 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 period
1. “Possession must be open, notorious, peaceful, adverse, exclusive,
actual and continuous”
a. Claimant used land as an owner would
b. Owner has a chance to react to adverse presence
c. Adversity – Claimant in possession without owner’s permission
i. Acknowledgement of rights negates adversity
1. Offering to purchase is an acknowledgement
2. In this case: Plaintiff meets requirement of adverse possession
a. Intermittent use could satisfy element of continuity (Walker)
iii. Possession was with intention of excluding possession from true owner
1. There must be proof of inconsistent use
2. 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 claimant
4. This cannot apply where there is a mutual mistake about title
a. Owner can have no enjoyment on soil he does not think is his
b. If it applied it would protect deliberate squatters and punish
innocent trespassers
5. 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 owners
1. 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 possession
b. 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 whole
a. 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 conversion
a. 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 run
2. 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. Majority
a. Neither has full title to the money, the question is who should have a possessory title
b. 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 claim
c. Where something is lost (involuntary parting) - “true finder cases”
i. In British Airways & Bridges, finder able to keep found item over the land owner
ii. 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 land
2. This occupier must have factum and animus possidendi
a. In this case: Did Defendant have de facto possession of lands
e. 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 defendants
iii. 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 action
9. 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 sues
2. Majority
a. Onus on defendant to prove they had rights to bracelet before plaintiff found it
i. They did not have possession, but claimed it
b. Defendant took insufficient measures to claim proprietary rights over objects in lounge
c. Law gives owner of land better interest than trespasser, but plaintiff was not trespassing
d. Other situations that favour landowner are if chattel:
i. Is underground, attached to realty, or owner intended to appropriate chattel
e. Obligations of finder:
i. No rights unless it had been abandoned/lost and he takes it under his control
ii. 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 owner
iv. Finder working as servant/agent acts on behalf of employer for sake of chattel
v. Take all reasonable measures to acquaint true owner with whereabouts
f. Rights and liabilities of an occupier
i. 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 whereabouts
3. 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 dissent
b. 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 garbage
ii. 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 proved
1. 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 owner
2. 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 others
2. Majority
a. Three recognized methods for making a valid gift of a chose in possession inter vivos
i. Deed
ii. Declaration of trust
iii. Delivery
1. In absence of deed or trust, there are 3 essential elements for delivery:
a. Intention of donor to give the gift
b. Intention of donee to accept the gift
c. Delivery of the gift
iv. Equity won’t assist as volunteer – thus equity will not complete an imperfect gift
v. Possession is prima facie evidence of property
1. Possessory title as good as absolute title against all except true owner
vi. The burden of proof is on the one alleging a gift had been made
b. Intention to give
i. “Intention must be made manifest and expressed with certainty”
ii. Traditionally accompanied by words which evince intention and name object
1. Typically they’re sufficient, in “unusual circumstances” not necessary
iii. Where donor and done are dead, caution is particularly necessary
iv. In this case: Intention has not been proven
c. Delivery
i. 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 delivery
1. Where nature of goods makes manual delivery impossible or impractical
2. 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 person
1. 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 delivery
3. 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 filed
2. Majority
a. Donatio Mortis Causa – Same characteristics as inter vivos, but takes effect after death
i. Three Essential Elements:
ii. Impending death from an existing peril
1. Awareness of terminal illness is sufficient
iii. Delivery of the subject matter
1. Though he did not actually deliver, court will infer from actions whether
there was a sufficient intention
2. In this case: Delivery complete when keys were handed over
iv. Gift takes effect upon death and reverts to donor if they recover
1. Donor may revoke gift at any time before death
2. In this case: He did not suggest gift only took place if he died
a. Thus, the intention was for an inter vivos gift
b. Inter Vivos
i. Intention to give and receive is not in dispute
ii. 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 donee
3. So long as intent to make the gift continues until death:
a. Unfulfilled gift is complete if donee becomes executor of will
4. 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. Majority
a. Clear intention of the grantors to grant a fee simple
b. 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 causa
ii. Inter vivos gifts of fee simples still require “magic words”
3. Held: For defendant. There was a fee simple
4. 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. Majority
a. Testator’s overall intent is to give a fee simple with limits
i. A fee simple can’t have limits
ii. 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 wife
2. In event there was something left over, it went to other beneficiaries
3. Dominant intention was to give a full gift to his wife
a. Thus there is a fee simple
3. 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 encroach
ii. No inter vivos disposition power, which could create a fee simple (Townshend)
1. Widow only has power to encroach on capital for maintenance
iii. Widow cannot give property away because it doesn’t contribute to maintenance
3. Ratio: “Plain language” is very difficult to overcome in wills
a. 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 received
2. Majority
a. Many possible interpretations
i. Court will try to reconcile two apparently conflicting provisions of a will rather
than absolutely ignore one or another
b. Testator intended both parties to benefit from the will
c. Preferable interpretation is testator gave life interest without power of encroachment
i. Widow therefore received title to it without encroachment
1. Testator intended plaintiff to benefit plaintiffs as well, which isn’t
possible if there is an absolute power of encroachment
ii. There is a gift over to the plaintiff
1. Plaintiff should ultimately receive the property
d. Look to the overall intent
i. Absence of words does not mean absence of intent for those words
3. Held: Testator gave a life estate with a gift over. No absolute interest
4. 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. Majority
a. Generally life tenant is responsible for paying taxes and utilities from property income
b. Repairs
i. Regular care (ex. lawn care, interior painting) to be paid by income
1. Heat generally falls in this category, but will explicitly overrules this
ii. Property Repairs (ex. replacement of a fence or retaining wall) paid by capital
c. Insurance
i. In common law, no duty for insurance to be paid by either income or capital
ii. Trustee may be liable for negligence in performance of duties as a trustee
1. Although Trustee Act does not impose this duty, it is expected
iii. 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 insurance
1. 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.