PROPERTY-RAMSAY-TERM 1 & 2_2002-2003
Cases & statutes – areas
1. Air space
3. Riparian rights – accretion, access, Water Act cases
5. Delivery – gifting cases
6. Effect of s. 20 LTA
7. Proprietary estoppel
8. Misc. cases
Kelsun v. Imperial Tobacco Co. (1957 Eng. QB)
? ? leasing land. ? uses premises airspace for ad. ? applies to put up another sign protruding into ?‘s airspace. Owners
consent, sign up. 3 yrs later, ? orders sign removed, ? won‘t. ? says sign trespass; if not, then nuisance. ? Tobacco sign people going thru shop to maintain sign. Changed mind b/c s/o else offered $ to put up diff. sign.
? Trespass, ? must prove right to airspace. To claim nuisance, ? must prove damages; can be to use & enjoyment of ppty. ? Test for damages in lieu of injunction: Injury to ? must be small; must be able to calculate loss in financial terms; must
be able to compensate injury by small $ payment; and injunction is oppressive to ?. ? Ratio: ? (as leaseholder) owned airspace. Signage overhanging property constitutes trespass [Narrow]; anything
overhanging airspace (other than aircraft) constitutes trespass [Broad]. You have right to airspace above your land.
? Injunction granted, not damages. Damages would‘ve meant court gave licence to ? to continue violating airspace. Why did he want trespass over nuisance? < Injunctive relief.
There‘s no degree of trespass. It either is trespass, or it isn‘t. The amount of trespass determines damages, etc.
Bernstein v. Skyview (1977 QB)
Facts: ? flew over ? property and took photos of his property. ? sues for trespass.
Issues: Does an owner of property truly have rights ―to the heavens above‖? Held: Case dismissed
Ratio: Property rights to airspace extent required/height necessary for ordinary use/enjoyment of their land
Manitoba v. Air Canada (1980 SCC)
Facts: Politician sues Air Canada for taxes it tried to charged the airline for flying over ―Provincial airspace‖
Issues: Does a province and/or Crown have the right to tax objects flying over ―their‖ airspace? Held: Case dismissed
Ratio: Airspace is incapable of being truly ―owned‖ b/c too hard to survey; Provinces cannot tax beyond their borders
Note: Subsequent legislation in BC has allowed airspace to be “owned” by filing an airspace parcel plan.
LTA s.139 - Airspace is land and lies in grant
LTA s.143 to 146 - Airspace plans must be surveyed, in the proper form and approved by the registrar of land titles
? Fixtures form part of land and improvements to it
? Therefore, when land is transferred fixtures are transferred with land.
? What constitutes a fixture?
? If object not attached to soil by anything other than its weight it is chattel and NOT fixture
? If object attached in ANY way to the soil it is fixture (Subject to a number of tests)
? Two part test to determine if it is a fixture
a) Degree of affixation: If obj attached in manner so slight RP would believe it chattel, cts will hold it chattel
b) Purpose of affixation: (“Better enjoyment test”)
Is object affixed for better enjoyment of object? If so, chattel
Is object affixed for better enjoyment of land? If so, fixture.
Note: Purely objective test. Intention of party irrelevant. Courts look only at what RP would see it to be.
Property Cans 2002/3 Ramsay - Page 1
Can register charges against fixtures in LTO; charge is interest in land & party reg‘ing can seize obj as security for debt etc.
Lasalle Recreations v. Canadian Camdex (1969 BCCA)
Facts: Carpet laid in hotel not paid for. ? sued for declaration that carpet chattel so they could seize & recover debt.
Held: Case dismissed. Carpets are fixtures.
Ratio: Carpet laid for better use of ppty NOT better use of carpet; Affixation does not have to be forever.
Re Davis (1954 Ontario High Court)
Facts: Bowling lane added onto side of bldg. Upon transfer of ppty, dispute whether lane is fixture or chattel
Held: Lane is chattel
Ratio: Bowling lane, on face of it, is fixture. But if purpose of affixing chattel is ―better enjoyment of chattel‖ then
affixation does not make it fixture; Bowling lane affixed not to ―improve‖ use of ppty but for use & enjoyment of
lane. Therefore it is chattel. Bowling lane was easy to remove.
Whether item can be independently enjoyed & used by self or whether merely constitutes improvement to some part of ppty
Royal Bank v. Maple Ridge (BCSC)
(1) Any item unattached to ppty except by own weight, removable w/o damage/alteration to fixtures/land, is chattel.
(2) Any item that is plugged in and can be removed without any damage is a chattel.
(3) Any item is attached even minimally (ie: cannot be unplugged) is a fixture.
(4) If equipment attached to structure, & part could be removed but useless w/o attached part, entire equipment is fixture.
(5) Where item is determined to be fixture, may nevertheless be removed if it can be shown it is tenant‘s fixture. (6) In circumstances not covered by these rules, ct should resort to purpose test > intended to be fixture or chattel?
Elitestone v. Morris (1997 HL)
Bungalow on concrete pillars held to be part of realty.
? Riparian Owner: Ppty owner whose land borders on a body of water
? Riparian Owners have right of access to water but do not own water, shore or bed underneath.
? Crown owns all bodies of water and soil beds underneath unless it has specifically given grant of title away
? Riparian Owners once had rights in CL to ―use, flow and quality of water‖ subject to rights of other rip owners ? These repealed by Land Act and Water Act < provides water ―may‖ be used by riparian owner as long as ―unrecorded‖
(not registered under provisions of act) & only for domestic use. Otherwise permit must be granted for use of water.
? Percolating water (Water under ground), standing water & flowing water all owned by Crown
? CL rules still apply to ―unrecorded water‖ to extent/effect on other rip owners of same ―unrecorded water‖
Accretion & Erosion
? If water boundaries of a riparian owner change through accretion/erosion, boundaries of property change with it
? Cts have held accretion must be gradual & accomplished by forces of nature (can‘t pump lake dry to gain acre to ppty)
Johnson v. Anderson (1937 BCSC)
Facts: Stream running through ? property diverted upstream by ? for the purpose of operating commercial business. ? had
license under Water Act to use water but it did not vest in him authority to divert stream.
Issues: Can ? assert rip rights at CL & get injunction against ? b/c denying him right to use water for domestic purposes?
Held: For ?, injunction granted.
Ratio: Water Act repealed rip right to ―flow‖ but didn‘t address right to ―use and quality‖ of water for riparian owners
Rip owners still have right to ―unrecorded‖ water domestic use if doesn‘t affect ―flow‖ or other rip owners‘ rights
Schillinger v. H Williamson Blacktop (1977 BCSC)
Facts: ? landscaping upstream from ? muddied waters of stream ? using to operate commercial fish farm. ? fish died. ?
had license to use water but gathering water from stream not specified in license. ? sues for nuisance. Issues: Whether ? has right (Riparian or Statutory) to divert water from ? land for commercial purposes.
Held: Claim dismissed
Ratio: Riparian rights at CL never extended to diverting water; ? license never gave authority to use water he was taking,
?no right to divert and/or use it; Because he had no right, riparian or statutory, to water he could not get damages
Steadman v. Erickson Gold Mining (1989 BCCA)
Property Cans 2002/3 Ramsay - Page 2
Facts: ? piped water from stream running through his ppty for personal use & to operate small diamond saw without
license. ? built road nearby & contaminated his water. ? sues for nuisance.
Issues: a) Was water ―Ground Water‖ as defined in Water Act?
b) Did ? operation of diamond saw mean he was using the water for purposes other than ―domestic‖ use?
c) Were ―works‖ he erected to pipe water into his house in contravention of Water Act? Held: for ?
Ratio: a) ―Unrecorded‖ ground water NOT subject to Water Act.
b) Saw was being utilized in ―domestic‖ manner
c) Act must be interpreted to preserve right to works for diversion for domestic purposes.
? using his land (water) in manner infringing neighbor‘s right/ enjoyment of land, ?liable in nuisance
Property Cans 2002/3 Ramsay - Page 3
Royal Proclamation (1763): Vests ownership of all ―non-tidal‖ waters and beds underneath in Crown. Some debate around
whether this means Crown has owned all the water since this proclamation.
Land Act : s.52 repeals ―ad medium filum‖ rule and vests ownership of water and beds in Crown
Water Act: s.2 repeals common law right of riparian owners to the use, flow and quality of water; goes on to require use of
water to be only under a valid license.
Note: CL rules still apply to “unrecorded” water (Water for which permit not granted under Act) & rip owners may still use
“unrecorded” water for domestic purposes
Water Protection Act: Vests ownership of percolating water in Crown
? Establishes licensing reg‘s for large-scale use of water and/or transportation of water domestically in BC/abroad.
CL > rules applicable to riparian owners do not extend to water that flows through the soil. Becomes ppty of the first person
to draw from it lawfully to surface. In BC Water Act & Water Protection Act take precedence (see above)
Ownership of the Beds of Watercourses, Lakes, and Ponds
CL rule of medium fulum (middle line) usu operates- Unless some other indication present, will be divided down middle