PROPERTY LAW CAN (FALL 2011)

Why do we have property?

THE RULE OF CAPTURE

Pierson v. Post (1805) SC NY- Post has been chasing a fox for a long time, but then Pearson comes along and gets it

Majority- the fox is not owned until someone actually captures it or mortally wounds it (known as the “rule of capture”)

Dissent- “property in animals may be required without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect”

o Not really good though- what is a “reasonable prospect” Want as much killing of foxes as possible- more profitable, and prevent them from eating

chickenso Rewarding labour

Westmoreland v. Cambria Nat. Gas (1889) PA- Brown leased his land for people to drill gas to one party, and then turned around and leased it to another person as well

Possession of the land is not necessarily possession of the gaso All you need to do is tap the gas in order to have control, not necessarily possess it

Don’t want people to waste it by taking it all out at once Reward labour with ownership

International News Service (INS) v. Association Press (AP) (1918) US- INS was using news published by AP to compile its own news, undercutting AP’s business, INS claims that published news are public domains, where AP claims that news is its property

Issue- can P exclude D from copying news that P has already published? Struggle between interference with business practices vs. interference with intellectual property

rights AP puts labour into collection and publishing of news, which should qualify the news as property

o The costs justify an expected profit- is INS can take away from profit without paying the costs, then the economic incentives of the business are undermined

While publishing news does put it into the public domain- the rival news agency has a different status, wince it is also involved in news publishing

Labour theory- INS endeavouring to reap where it has not sewn Economic efficiency- news wouldn’t be profitable if anyone could take it and we need news Reward them for doing it by recognizing what they do as their property- reward labour, but

need to have a balance News is quasi-property- with a limited right to exclude Held that AP has quasi-right over the news, which prevents rival news agencies from re-

publishing it for 3 hours Upheld the common law rule that there is no copyright in facts

LIMITS TO THE RULE OF CAPTURE

Texas Railroad Commission v. Marrs TX CA- Marrs wanted to take out 35 000 barrels a day, but TRRC limited them to only 6500

Trying to strike a balance between exploiting resources and rewarding labour vs. trying to deal with waste and environmental issues

A case of wanting to quantify the “rule of capture”- overproduction is bad

Hardin- “Tragedy of the Commons” If property is communal in situation where the costs are distributed evenly but profits are

repealed individually, then each co-owned will attempt to maximize their usage resulting in over-utilization and eventual destruction of the commons

o If you share cost- you don’t see it all individually Positive component- the function of the increment of one animal, which the herdsman gains all

the proceeds from (+1) The negative component- the function of the additional overgrazing created by this one animal,

which is then shared by all the herdsman (only a fraction of -1) If we could all just agree on stuff, instead of trying to take advantage- this would be better for

everyone Ex. pollution- spew your pollution into the air, and private gain is that you don’t have to deal

with it, just share it with everyone else, but it really ends up making everyone worse off Can be remedied by private property (internalize costs) and regulated common property (ex. in

England)o Possible issue with private property- “tragedy of the anti-commons”

Where property ownership is so fractured that it cannot be used effectively due to high transaction costs, thus ending up being under utilized

o Also by “mutual coercion mutually agreed up”- have an agreement, and then punish those that don’t abide

Ex. taxingo Also by government ownership, and co-ops

Yanner v. Eaton (1999) Aus. HC- 2 legislations, Native Title Act (gives Aboriginals the right to traditional activities) and the Fauna Act (extinguishes the right to hunt crocodiles), P is a native accused of killings crocodiles illegally

Issues- is property, as defined in the Fauna Act interpreted as being exclusive right of State to control over its fauna (and hence extinguishing P’s right to hunt in Native Title), or is it represented as something less absolute?

Property does not imply that state has absolute exclusive rights- describing a legal relationship with a thing (Fauna Act)

o Overall said that it can be seen as nothing more than “a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an importance resource”

o Effect of the Fauna Act was to forbid the taking or keeping of fauna, expect when licensed

Normalist view of property The Crown really has more of a duty to take care of the land for every one No reason why the 2 acts cannot co-exist Dissent- single or multi variable essentialism is necessary to the working of the Fauna Act Held- judgement for P (not native guy)

THE RIGHT TO EXCLUDE

MacPherson- “The Meaning of Property” (1978) Not constant- changes are related to changes in the purposes which society or the dominant

classes in society expect the institution of property to serve Property is a right, not a thing

o An enforceable claim to some use or benefit or something- this enforceability is what makes it a legal right

Depends on society’s belief that it is a moral right Common property- each member of the society has an enforceable claim to use them

o Ex. public parks, city streets, highways, etc.o The state creates the rights, and the individuals have them

Private property State property

Merrill- “Property and the Right to Exclude” (1998) 3 ways of thinking about property:

o Single variable essentialism- the right to exclude others is the irreducible core attribute of property

Supreme Courts also tend to uphold/say this a loto Multivariable essentialism- there is exclusion, use or enjoyment, and then disposal, or

alienation part of the land Right to exclude is necessary, but not a sufficient condition of property The essence of property lies not just in the right to exclude others, but in a

larger set of attributes or incidents, of which the right to exclude is just oneo Nominalism- what we are in class

Framework that property is kind of whatever the state says it is Views property as a purely conventional concept with no fixed meaning The right to exclude others is neither a sufficient nor necessary condition of

property Idea of a “bundle of rights”- can be added or removed

Victoria Park Racing v. Taylor (1937) Aus. HC- P hosts races and charges admissions to people who place bets on the races, and their neighbour D has set up a tower on his property, from which he broadcasts the races, P wants protection of their property as they say that they sell less tickets now as people can just listen on the radio instead of having to pay admission

Issue- is spectacle a property to which the racecourse owner has a right? No precedent for protection of spectacles No protection in this case- neither in property theories, nor in law of nuisance Any person is entitled to look over P’s fences and see what goes on in P’s land The law cannot, by injunction, erect fences that P is not prepared to provide- it is P’s job to do so A man’s rights on his property are lawful only when they are reasonable, having regard to his

own circumstances and those of his neighbouro Each owner’s rights may be limited by the rights of the other

Held- the law does not assume any responsibility in excluding D from viewing and broadcasting the event

“spectacle” not considered to be property

INTELLECTUAL PROPERTY

Monsanto (Canada) v. Schmeiser [2004] SCR- a strain of patented genetically engineered herbicide resistant canola was blown onto D’s property, and D, unwittingly continued to cultivate it as it took over his fields, P hold the patent to this canola and sells it to other farmers, under the condition that they use it for a year and do not sell the crops to a third party, nor keep any for replanting, P sued for copyright infringement

Issue- is the use of the plant that contains the patented gene an infringement? The patent is applied to the genes, and is valid and uncontroversial D says that the patent only applies to the gene and cell, not to the plant as a whole S. 42 of the Patent Act gives the patent owner the exclusive rights to “making, constructing and

using” the inventiono D did not “make” nor “construct”- but did D “use” the invention?

Judge reads “use” as derive advantage from Case law points that is a patented object is a source or an integral element of

something else, then the “use” of the final product infringes on the patent D actively cultivated the plants for an economic benefit depriving P of their

benefit- constitutes “use” The onus to rebut the presumption of possession was on D- did not do well enough of a job

o If D really had no intent to use the patented plants, then he could have gotten rid of him- instead, his actions point to being aware of the situation and proceeding nonetheless

Ruled that Schmeiser deprived Monsanto of its monopoly on the special canola plant by storing and planting the seeds pursuant to his commercial interests

“stray bull” doctrine (where the farmed gets rights over anything that comes onto his land) is not applicable- since the question is not classical property rights, but patent protection

Held that there was a patent infringement- appeal allowed in parts

Mattel v. 3894207 Canada Inc. [2006] SCR- restaurant chain “Barbie’s” wants to register a trademark, but there’s an objection from Mattel that says that if you open these restaurants in Quebec, they might think that they are somehow related to their toy company, creating customer confusion

Question of whether the 2 trademarks would create confusion Traditional trade-mark confusion test

o Found that the Board was reasonable in determining that there was no likelihood of confusion between the 2 marks

o “if it is likely in all the surrounding circumstances that the prospective purchaser will be led to the mistaken inference”

5 factors to be considered when making a determination as to whether or not a trade-mark is confusing:

Inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known

The length of time the trade-marks or trade-names have been in use The nature of the wares, services, or business The nature of the trade

The degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them

Held that Mattel could not enforce the use of their trade-marked name against the restaurant

Boundaries and Trespass

Latin Maxim- “Cuius est solum eius est usque ad coelum et ad inferos” “whomever owns the piece of land owns everything above and below it to an infinite extent”

Law seeks to find a balance between the realistic needs of landowners and the public for whom air is common property

Injunction typically used as a remedy instead of damages- otherwise the wrongdoer would be purchasing and unilaterally expropriating the right to trespass simply by paying the amount ordered

Nuisance- where there is a disruption of a right to use

Trespass to land- to protect only direct interference with possession

INTRODUCTION

BC Trespass Act

AIR SPACE

Didow v. Alberta Power (1988) Ab CA- power poles trespass into the property, but D claims that P has no use for the space above

Issue- is the airspace a part of P’s property? Is there trespass, even though P is not using the space?

Considered to be a trespass and P granted costs The maxim has no literal effect- airspace interference by a permanent fixture is a trespass

o The landowner is protected from permanent structures which in any way impinge upon the actual or potential use and enjoyment of land- permanence is important

Note: the province of Alberta later went and changed the legislature to allow these intrusions

United States v. Causby (1946) US SC- guy owned a chicken farm, the government built an airport during the war near it, lots of damage done, was super loud, chickens died in fear, problematic, sued for trespass

Said that “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere”

o Otherwise, could have no building, trees couldn’t be planted, etc.o Thus, a landowner “owns at least as much of the space about the ground as he can

occupy or use in connection with the land” and invasions of that airspace “are in the same category as invasions of the surface”

Need to consider highest and best use- want to be able to allow airportso Don’t want to allow him to get compensation- then everyone would be bringing actions

like this

Held that the Latin maxim had no effect “in the modern world”- therefore, Causby did not have an action in trespass and he wasn’t given any compensation either

o Since he did not have the right to exclude people, he is not compensated- this is not a case of expropriation

It was merely incidental damage occurring as a result of the authorized air navigation

SUBSURFACE RIGHTS

Edwards v. Sims (1929) Kentucky CA- Lee owned land under which the cave lays, but the entrance was on P’s property, who explored the caves and developed a walkway through them and began selling tours, upon learning of this, Lee sought equitable relief to permit a survey of the caves, trial judge allowed a survey, but P appealed

Majority- upholds the Latin maximo The right to enjoyment and possession of property is limited in so far as the state has a

right to infringe upon those rights when it believes that those rights are being used to the detriment of other private citizens

o Distinction between the public nature of air, but the private nature of sub-terraino Ruled that P and Lee have to share the ownership of the cave

Dissent- only have rights to underground property which you can exploit, and since the cave opening was on P’s land, there was no way that Sims could exploit the cave, and so he should have no rights

o Based on the social utility theory Upholds the Latin maxim in majority- also has a really good dissent A case of wanting to reward P’s labour

Barton- “Canadian Law of Mining” (1993) We care a lot about the definition of minerals The Crown has given away/sold a lot of land in order to develop, cultivate, etc.

o In doing this- have reserved for itself the “mineral rights” Basic common law rule- minerals, except for goal and silver are part of the land itself and belong

to the owner of the soil (land)o Only a prima facie rule though, not an absolute

Vernacular Test- to decide if a particular substance is a “mineral”o Whether it was so regarded in the vernacular of minerals, commercial people, and

landowners at the time when the severance took place Purposes and Intentions Test- in construing a reservation of mines and minerals, regard must be

had not only to the words employed to describe the things reserved, but also to the leading purpose or object that the deed or statute embodies

Exceptional Occurrences Test- the word “minerals” in a reservation does not include the ordinary rock of the district, but rather exceptional or rare circumstances

LATERAL BOUNDARIES

Boundary- an imaginary line drawn to mark the perimeter around a property

When neighbours are unable to determine their boundary- a boundary can be agreed upon under the conventional line doctrine

If neighbouring parties intend to settle the boundary between them, then any boundary line agreed by them is binding on parties and their successors in title notwithstanding that it is not the true line according to the deeds or Crown grant

Robertson v. Wallace (2000) Ab CA- boundary between 2 estates is marked by a river and a fence, which is on D’s side of the property, but the river has changed its course, leaving a wider swath of land between the fence and the river, which has created an overlap in property rights, since no one knows where the boundary should be

Issue- where is the boundary? For the last 50 years- fences was the de facto boundary for grazing cattle, and was maintained

by both partieso Does not follow the present course of the river- but is built on the high ground where it

was safe from the river’s original course No written or verbal evidence of the agreement to the boundary- but over the past 50 years,

there were no major disputeso Thus, conduct of the parties can allow the court to infer an earlier agreement

P bears the onus of proof as per conventional line doctrine Without direct evidence of the agreement, the court finds the conduct of parties insufficient

enough to infer an agreement, rather “an uneasy truce” If the change is gradually and imperceptibly (accretion)- then the boundary changes

o For evulsion (faster)- keep the boundary as though it never changed Held- not enough to prove acquiescence (an act where a person knowingly stands by without

raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights), therefore, the river, and not the fence, is the boundary

Blewman v. Wilkinson [1979] NZ CA- building is on a hillside, subdivider damages a bunch of land Doctrine- if your neighbour excavates in such a way to cause you damage, then you are entitled

to these damageso BUT if you build on your land and then it gets messed up- no damages

Unless the damages would have happened in the land’s natural state (no building, changes, etc.) and you happen to have a building on it- can recover damages

Landowner cannot be even a partial contributor to the subsidence- so if you can show that you did nothing, likely to get damages

Duty to support the land only applies to land in its natural state- doesn’t extend to support of buildings on that land

Have to allow your neighbours to exploit their land- without having to worry about yours Incorporated a standard of negligence into the determination of liability for support

o Appears that in some circumstances (NZ hillside subdivisions), due diligence may give rise to a defence

Common law rule- support in natural state Held that the subdivider is not liable- better just to make people get insurance

R. v. Nikal [1996] SCR- native was fishing without a provincial license adjacent to the reserve

Issue- does the reserve have property rights to the river? Does this right convey the right to fish? Common law presumption that if a river runs through your property and your property is on

both sides of it- it is yourso But if it is navigable- then it belongs to the Crown

Held that rights to fishing are not included in property rightso The “ad medium filium aquae” principle does not apply to navigable rivers

The correct test for navigability is to consider the entire length of the river, without rapids, falls, etc.- decides that the court never had any intent of giving up the fishery

Appeal dismissed- due to the infringement of aboriginal rights (S. 35 of 1982 Constitution)

REMEDIES FOR TRESPASS

First Baptist Church v. Toll Highway Authority, Illinois CA- flood damage occurring to the church from a highway built, church wants an injunction

Need to determine the relative hardship- if yes, then no injunction Instance of a continuing trespass Church considered to be quasi-personal use- lots of community, personal ties, important, etc.

o Then you can require the modifications/repair of the buildings- but not if it’s wholly disproportionate

Do this on top of the diminution of value- highway has to pay for more since it has quasi-personal use (pay more than what the land is worth)

If no personal attachment- just look at the property value from before to after and then assess damages

o All commercial, just about moneyo Diminution in value- used when calculating damages in a legal dispute, and describes a

measure of value lost due to a circumstance or set of circumstances that caused the loss Measures the value of something before and after the causative act or omission

creating the lost value in order to calculate compensatory damages Ex. before the flooding, worth $100 000, but only $40 000 after

o But if you can repair for $20 000- just do this As long as the worth can go back up to $100 000

o If you cannot repair- then you have to pay the $40 000 in damages

For quasi-personal- can ask for more than this Can ask for as much as you need, but nothing

completely disproportionate Test for application of the cost-of-repair measure of damages:

o 1) whether the damage is to realty held for a personal rather than a business useo 2) whether the injury is capable of repairo 3) whether the repair can be accomplished without expending amounts wholly

disproportionate to the value of the land

Samson v. Brusowankin (1958) Maryland CA- 2 families who bought lots because they had lots of beautiful trees, but then a contractor comes along and accidently takes their down too

If it’s cheaper to fix the problem/property- then just do this Difference in fair market value

P can elect to take the difference in fair market value, or to repair/restore- but only if it’s for “reasons personal” and if “reasonably incurred”

Fundamental principle that one whose real property has been damaged should recover an amount sufficient to compensate him fully from losses which are the proximate result of the wrongdoer’s conduct, which he pleads and proves

ADVERSE POSSESSION

Textbook p. 287

Keefer v. Arillotta (1976) Ont CA- Keefer granted an easement way back in the day to use the driveway or something by Arilotta, except for the garage, brings an action for adverse possession, and had to show continuous possession, but failed as it was not exclusive

Test for adverse possession- whether they precluded the owner from making the use of the property that he wanted to make of it

o Must establish: 1) actual possession for the statutory period by themselves and those through

whom they claim 2) that such possession was with the intention of excluding from possession the

owner or persons entitled to possession AND Failed here- never intended to oust the other family, never any

problems 3) discontinuance of possession for the statutory period by the owner and all

others, if any, entitled to possession Failed here- other party never discontinued their possession (still used it

for a driveway and stuff)

Teis v. Ancaster (1997) Ont CA- the land in between what Teis owned and Jerseyville Park is believed to be owned by Teis, but turns out that it isn’t, always had a suspicion that maybe it was the city’s, but never really pursued it, clubhouse was built and public began to interfere with this land so Teis sued for possessory title

Under ss. 4 and 15 of the Limitations Act- the interest of the true owner of land may be extinguished by a person who has been in adverse possession of that land for 10 years, must establish:

o 1) actual possession for the statutory period by themselves and those through whom they claim- needs to be:

Open and notorious- not a secret Peaceful Exclusive- act like you’re the owner Adverse- inconsistent use Actual- physically present Continuous

o 2) that such possession was with the intention of excluding from possession the owner or persons entitled to possession AND

o 3) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession

Question of what constitutes “inconsistent use”?

o Focuses on the intention of the owner or paper title holder, not on the intention of the claimant

o Cannot apply to cases of mutual mistake- the claimant’s use of the land needs to actually be inconsistent with that of the true owner’s

Held that the land belonged to Teis, but the townspeople had an easement on the laneway

Re Canadian Pacific Railway [2002] BCSC- land given in a Crown grant, leased again, blah blah, question arises of who really owns the land

3 possibilitieso Roberts and his successors- guy who was given the Crown grant

But wasn’t acting like it was his- so NOo CPR- actually using it more than anyone else

Trying to decide if they had adverse possession against the Crown Para. 48- need to possess for 60 years

Found that it does belong to the CPR via adverse possessiono The Crown- can argue that they never actually gave it away

Common law doctrine of adverse possession flows from limitation statutes- “where a party has had the intention to possess property and has in fact possessed it for the period of time stipulated in the limitation statute, effectively excluding the true owner, the true owner will be barred from bringing an action to recover the land”

o For individuals- 20 yearso For the Crown- 60 yearso Can arise both through mutual mistake and where the adverse claimant is a knowing

trespassero Act of possession must be all the things from the above case

Limits to Property Rights

NUISANCE

Borland v. Sanders Lead Company, Inc. (1979) Alabama SC- D has a smelting house with bag houses that have caught on fire multiple times, leading to lead pollution to an adjacent farm

Rationale- invasion does not need to be physically tangibleo Pollution can constitute trespass even though not physically observable

Found that P is entitled to recover for trespass Things to take away from this case:

o Air pollution can be nuisance or trespasso Trespass and nuisance are not mutually exclusiveo Trespass need not be physically observableo Understand that trespass evolved from physical and observable to invisible pollution

If the intrusion interferes with the right to exclusion possession of property- trespass If the intrusion is to the interest in use and enjoyment of property- nuisance

Jost v. Dairyland Power Cooperative (1969) Wisconsin SC- D built a power plain in 1947, and increased combustion in 1967, P has a nearby farm which D is dumping sulphate deposits onto

Evidence of due care excluded

o Injuries caused by air pollution or other nuisance must be compensated irrespective of the utility of the offending conduct as compared to the jury

This case didn’t really set a precedent- but is a point where the law is starting to change differently

o Value of D’s activity is irrelevant for purposes of damages But for an injunction- need to discuss the relative hardship and the social merits

of continuing the operationo Due care by D is irrelevanto Understand that nuisance used to involve this strict, non-balancing test

Restatement of the Law (Second) Torts Private nuisance- unreasonable invasion of interest in P’s use and enjoyment of land An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if:

o The gravity of the harm outweighs the utility of the actor’s conduct ORo The harm caused by conduct is serious and the financial burden of compensating for this

and similar harm to others would not make the continuation of the conduct not feasible Sometimes it’s important for an activity to continue- as long as payment is made

Gravity of harm- factors (S. 827)o Extent of the harm- look at intensity and durationo Character of the harm

Ex. isolation hospital, high construction, pig sty, etc.o Social value of use/enjoyment invaded

Ex. medical/care units, schools/daycare, residential/commercial useso Sustainability of use/enjoyment for locality

Industrial/residential? Coming to the nuisance?o Burden on person harmed/avoiding harm

Need to consider if the person is “unreasonable” medical conditions? No unusual sensitivities?

Utility of conduct- factors (S. 828)o Social value of conduct

Transportation always seems to win (ex. translink)o Suitability of conduct for locality

Matter of whether you’re in an industrial or residential areao Impracticability of avoidance

Again- transportation always wins Gravity vs. utility- severe harm (S. 829A)

o An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting is severe and greater than the other should be required to bear without compensation

Hickey v. Electric Reduction Company (1971) Nfld SC- D put poisonous material into this water from its plant, poisoning fish and rendering them of no commercial value

Not confined to P- therefore, constitutes a public nuisanceo The right to fish in the sea and public navigable waters is free and open to all

In order to succeed in private nuisance- P must show that the injury inflicted upon them by the acts of D was particularly direct and substantial, over and above the injury thereby inflicted upon the public in general

o Harder to show/win when there’s a public nuisance- have to show an injury that is different from the general public and that it was somehow more severe as well

o “any person who suffers peculiar damage has a right of action, but where the damage is common to all persons of the same class, then a personal right of action is not maintainable”

Advantages to having a public nuisance instead of private?o Maybe more likely to get an injunction instead of damageso Weighing the values- if it’s public, then you can get more people involved

Maybe more weight in the matter- able to say that it’s a public right to fish, not just for me

Trespass Nuisance-protects exclusive possessory interests -protects interest in the use and enjoyment of

your property-physical invasions -no invasion necessary-nominal damages can be awarded -actual damage must be shown in order to get

compensation- don’t really want to deal with small, unreasonable claims

Ex. walking onto someone’s property, cutting down trees, flooding, overhanging electrical equipment, physical occupation, smoke, use of property, etc.

-ex. loud noises (cable cars, bars, etc.), smells (pig sty, chemicals, etc.), flooding, changing landscapes, flies, vibrations, smoke (air pollution), prostitute houses, drugs, etc.

STATUTORY AUTHORITY

Ryan v. Victoria (City) [1999] SCR- motorcyclist thrown off bike when crossing railway tracks, sued the railway companies that owned and operated the tracks

SCC taking significant steps toward Canadian tort law relating to the special status traditionally employed by railways in negligence, as well as in respect of claims against public authorities in nuisance

Appeal considers the effect of statutory authority on the civil liability of railwayso D must show that there are not alternative methodso Code helps to ensure a minimum standard of safety that a statute sets out- but doesn’t

mean that it’s the safest or best option Railway denied liability on the ground that the tracks were authorized by, and complied with, all

applicable statutes, regulations, and administrative orders Traditional rule- liability will not be imposed if any activity is authorized by statute and D proves

that the nuisance is the inevitable result or consequences of exercising that authorityo Need to negative that there are alternative methods of carrying out the work- need to

show that it was “practically impossible to avoid the nuisance” Railway’s decision to exceed the minimum of flangeways by more than an inch was a matter of

discretion and was not an inevitable result or inseparable consequence of complying with the regulations

o Therefore, not practically impossible for the railways to avoid the nuisance which arose from the flangeways- they had discretion

Hazel & Co. v. Translink- building the Canada line and Hazel’s maternity business is affected by the construction and she wants compensation

Transportation always wins! ***FIX MEEEE

REMEDIES

Boomer v. Atlantic Cement (1970) NY CA- action by landowners for an injunction restraining the operator of a cement plant that emits dust and raw materials (nuisance)

A case of a continuing nuisance- but the damages to P’s property is relatively small in comparison with the value of D’s operation and the consequences of an injunction

Rule laid down in another case- whenever the damage resulting from a nuisance is found not “unsubstantial” ($100/year), injunction would follow

D lucky not to have been shut down- just had to pay permanent damageso Court chooses to grant the injunction conditioned on the payment of permanent

damages to P, which would compensate them for the total economic loss to their property present and future caused by D’s operations

Dissent- is D just paying a fee to break the law then?

Lewin- “Boomer and the American Law of Nuisance: Past, Present and Future” “balance of utilities test”- represented a radical departure from existing precedent

o Distinguished from most prior judicial formulations- quantitative nature Shift from balancing “interests” to “utility”

Any inquiry by a court should start with S. 829A- to see if the harm is sufficiently “severe”o If yes- then entitled to compensation regardless of D’s utilityo If no- then need to balance with D’s utility

COASE THEOREM

Fontainbleu Hotel Corp. v. Forty-Five Twenty-Five Inc. (1959) Florida CA- hotel builds more levels that block out sunlight to beach/pool area of neighbouring hotel

Court found that this was okay- no common law right to light Tall buildings = land savers Maxim “six utere two ut alienum non laedas”- “so use your own as not to injure another’s

property”o But judge says that it means that one much use his property so as not injure the lawful

rights of another Rule- you don’t have a right to prevent someone from building, as long as they comply with

existing regulations and whatnot

Prah v. Maretti (1982) Wisconsin SC- guy has solar panels on his house, but next door neighbour wants to build something that would interfere with access to an unobstructed path of sunlight

According to Fontainbleu (above)- Prah should have lost this caseo But the judge changes the rule- says that the 3 policy considerations are not acceptable

anymore: The right of landowners to use their property as they wished, as long as they did

not cause physical damage to a neighbour

Now- society has increasingly regulated the use of land by the landowner for the general welfare

Sunlight was valued only for aesthetic enjoyment or as illumination- didn’t used to be given a lot of, in any, weight by society

Now- P seeks sunlight for a source of energy Society had a significant interest in not restricting or impeding land

development Now- the need for easy and rapid development is not as great today as

it once was, while our perception of the value of sunlight as a source of energy has increased significantly

***these reflect factual circumstances and social priorities that are now obsolete

Courts should not implement policies that have lost their vigor over the years

Coase- “The Problem of Social Cost” (1960) If transactions are costless, the initial assignment of property will not affect the ultimate use of

the property Efficient use of land will eventually result if there is no outside interference, as the land will end

up in the lands of those who value it the most Notion that people tend to work things out for themselves (except when they don’t) Proposing that courts don’t do anything at all- just allow people to fix stuff on their own

o But transaction costs may make this problematic- ex. costs of negotiating, time required, inspections, hiring lawyers, etc.

o So if we didn’t have transaction costs- people would figure stuff out themselves Belief that legal rules are only justified by reference to cost benefit analysis Nuisances that are often regarded as being the fault of one party are more symmetric conflicts

between the interests of the two parties

ZONING

Excerpts from Krier- “Property” (2002) Zoning was a theory designed to prevent harmful effects being visited upon neighbours Trying to get people to resettle in new towns where they would have ample space to live

healthy and useful lives Ex. the “American Dream”, “Garden City”, etc.

o Paris is the antithesis of this though

Village of Euclid, Ohio v. Amber Reality- Co. (1926) SC US said that zoning reduced their property value Found that the ordinance in its general scope and dominant features, so far as its provisions are

here involved, it is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them

***FIX MEEE

Local Government Act- delegates some powers to properly incorporated local governments Ex. City of Vancouver, City of Burnaby, etc. Able to develop an Official Community Plan- set principles for what your city is supposed to be Create bylaws, draw up zoning maps, etc.- maybe allow variances

VARIANCES

Min-En Laboratories Ltd. v. North Vancouver (City) Variance Board [1978] SCR- applicant bought a lot and got a variance on the basis of undue hardship, but this infringed on the 20ft space that their neighbour was counting on

Appealed dismissed- so applicant can buildo Said that there was no evidence of undue hardshipo Board has no jurisdiction to make a determination substantially departing from the

zoning by-law or injuriously affecting the property of an adjacent owner

Metchosin (District) v. Metchosin Board of Variance (1992) BCSC- guy sought a variance to build some sort of house thing (made 3 different applications until he got it), as the property needs relief from setback requirement, neighbours alleged that the home would be “out of character” for the neighbourhood, board grants the variance and neighbours petition for relief

This is the guy who had a really weirdly shaped lot by the ocean Purpose of zoning regulations generally- to secure community amenity, not to restrict individual

rights Needs to be undue hardship to the applicant, and only then can the board order a minor variance

o Here, the undue hardship is the characteristic of the lot, as the property cannot be utilized for residential purposes unless there is a variance of the setback requirement

Thought that maybe some board members were biased Central question- where the variance granted by the board was major or minor?

o Needs to be decided in relation to all the surrounding circumstanceso The Board of variance had the jurisdiction to determine this- said it was minor

Ultimately held that the decision was up to the Board of variance- appeal is dismissed

Sahota v. Vancouver (City) [2010] BC SC- owned house since1975, but then there was a zoning change whereby the house was now non-conforming, but the city allowed it to continue, had a fire in 2006, so the city said that now was a good time to bring the house to code, applies for permit, approved, but then it expires and city tells them that they have to comply and it goes to court

“non-conforming use” Always was considered to be a public nuisance Question of whether the City has the jurisdiction to make the order for the house to be

demolished- yes, because of the Vancouver Charter “a discontinuance for a period of time means the right to use the premises as a non-conforming

use is lost simply by ceasing to use it for that period of time”o Found that the owner had “discontinued” use of the premise for a period of 90 days

Courts should grant a high degree of deference to decisions made by those who are familiar with and responsible for planning issues in their community

North Vancouver (City) v. Vanneck (1997) BC SC- petitioner seeks a declaration that the respondents are in breach of its building by-law and zoning by-law, and an injunction to force them to comply, this is the limit of the permitted use of the house to a single family

Try to show/establish that it was a chain of continuous use Issue- whether there was a lawful non-conforming use of the house when the first zoning by-law

came into effect in 1927

o “lawful non-conforming” use is defined in S. 970 of the Municipal Act- “where land, a building or a structure is lawfully used, at the time of the enactment of a rural land use bylaw or adoption of a bylaw under this division, but that does not conform to the bylaw, the use may be continued as a non-conforming use, but if the non-conforming for a continuous period of 6 months, any subsequent use of the land, building or structure becomes subject to the bylaw”

Only evidence offered of the lawful non-conforming use is affidavits of 2 people- but neither meet the requirement of reliability

Ordered to comply within 12 months

EXPROPRIATION

Expropriation- the politically motivated and forceful confiscation and redistribution of private property outside the common law

5th Amendment to the US Constitution- no person shall “be deprived of life, liberty, or property, without due process of law; nor shall property be taken for public use without just compensation”

2 American cases below- question of whether the regulation amounted to a taking of the interest that warranted compensation

Pennsylvania Coal v. Mahon- statute forbids any mining of coal that would cause the subsidence of any house, unless the house was the property of the owner of the coal and was more than 150 feet from the improved property of another

Issue- is this a legitimate exercise of police power? Majority- any regulatory taking restricting the rights of the property owner (not a police action)

has to be compensatedo Therefore, P gets compensation

Dissent- regulatory taking when it is for the purpose of protection of public health and well-being should not be compensable

Property may not be taken without just compensationo It may be regulated to a certain extent, but if the regulation goes too far, it will be

recognized as a taking Established the principle that the holder of property might be entitled to compensation for a

regulatory or indirect taking of property

Lucas v. South Carolina Coastal Commission- an act bars the erection of permanent structures on P’s sea-side property

Issue- does the act render property useless and therefore compensable under the Taking Clause?

Regulations that deny the property owner all “economically viable use of his land” constitute one of the discrete categories of regulatory deprivations that require compensation without the usual case-specific inquiry into the public interest advanced in support of the restraint

Total deprivation of beneficial use is the equivalent of a physical appropriation Leaving the owner of land without economically beneficial or production options for its use

(typically be requiring land to be left substantially in its natural state) risk private property being pressed into public service under the guise of mitigating serious public harm

When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good (to leave his property economically idle)- he has suffered a taking

o When an owner is denied the economical beneficial use of land- a “wipeout” Judgement for P

Ziff- “Takings in Canada” Lack of protection afforded under the Canadian Constitution for private property- nothing like

the “5th Amendment” in the US No express protection against state confiscation under the Canadian Charter

o But does protect other things like unreasonable search and seizure- doesn’t allow law enforcement agencies to enter homes and business premises or to seize personal property

o Also does impose restrictions on the regulation of public property There are statutory schemes across Canada to provide compensation for the expropriation of

lando Conventional pattern followed by all- if land is acquired by the stat, the erstwhile private

owner is compensated accordinglyo De facto expropriation- excessive regulation

Mariner v. Nova Scotia (1999) NS CA- real estate company plans to develop a beach area, but is denied by the province because of new Beaches Act, P claims de facto expropriation on the basis that the new Act effectively deprives them of the economic use of the land, P won is lower courts, but is appealed

Can’t build a house without a concrete foundation- therefore, no complete “wipeout” Issues- is this de facto expropriation? Does the province have to compensate the owner? Scope of de facto expropriation in Canada is constrained by 2 governing principles:

o Valid legislation or action taken lawfully with legislative authority may very significantly restrict an owner’s enjoyment of private land

o The courts may order compensation for such restriction only where authorized to do so by legislation

Thus, only loss of rights constitutes de facto expropriation- loss of economic value is insufficient As long as some reasonable enjoyment of the property remains, there is no expropriation Provides a convenient vehicle for comparison with Lucas (above) Things to consider:

o De facto expropriation- question of whether the government is trying to do something “by the facts” that it does not want to pay for

Government says that they only really pay when they’re taken something Has to go beyond drastically diminishing use- “must be a confiscation of all

reasonable private uses of the lands in question” Need to show that you have tried a lot of other options first

o The effects of regulation- plus the decision (what happens) under regulation Concept of “exhausting your remedies”

o Loss of interest in law vs. just the loss in value Loss of economic value = loss of land??? Land or interest in land > injurious affection Losing an interest in land is more likely to be compensable than just devaluation

o Loss of the bundle of rights- complete “wipeout”?

o Acquisition of land- does the government gain something? Province must gain something concrete or tangible

Appeal denied

Manitoba Fisheries v. Queen [1979] SCR- starts selling fish in 1926, but then in 1969, Freshwater Fish Marketing Act gives the statutory right to sell fish to the Freshwater Fish Marketing Corporation which can then license certain people to sell fish, but does not license P

Not actually a property case Held that property was not actually taken- but business rights

o The FFMC got these customers and stuff Had built up “good will” over the years, which was an “asset” or “property” of their business

o Held that this, although intangible in character, is a part of the property of a business just as much as the premises, machinery and equipment employed in the production of the property whose quality engenders the goodwill

Recognized rule for the construction of statutes- “unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation”

Appeal allowed- person gets money

Tener v. R. [1985] SCR- D is a company that holds lands for the purpose of mining and are denied a permit to mine the mineral claim when the land becomes a provincial park

Issue- is this regulatory taking to give rise to compensation? Somewhat of a special scenario- involved Crown land

o Therefore, the property right of the owner is not merely extinguished- it is re-vested to the Crown, who had given it away to the owner in the 1930s

Enhancing the value of public lands- not acquisition of interest in the land Original grant was to give the minerals themselves- company still owns the minerals, but just

cannot get at them One of the very few cases in Canada, where de facto expropriation was acknowledged and D

was compensated for the loss of his property interest

Cream Silver Mines v. R. (1993) BC CA- Park Act in 1965, P acquired mineral rights after in the provincial park, then later acquired park use permits, then development of existing claims in parks prohibited (expropriation), 1987 reclassified, P issued a resource use permit, but then in 1988 reclassified as class A park, no more use

Interest not “Crown-granted mineral claims but simply mineral claims”o Unlike one granted by the Crown- recorded or located claims have never been capable

of registration under the BC system of land registration Appeal allowed- people did not get any compensation