before you trust this outline, you should know a few things...

Howell – 108B – Property Midterm Outline

Before you trust this outline, you should know a few things so that you can make an informed decision about whether to use it…

1. I created this outline using my class notes and the Thomson and Ferguson (Keith’s Notes) outlines.

2. I chose to keep this outline minimal to help with the memorization process. You may want more information, and I wish you the best of luck with memorizing more!

3. I attended almost all classes during the fall term, and received notes for any missed classses.

4. I generally have a good memory.

5. I received an A minus on the mid-term exam.

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PROPERTY IN GENERAL

How do we know what is recognized as property and what its scope is?- Matter of policy – eg. Canadian policy allows us to buy, sell, and own land- Decisions are made by either legislature or courts

How can proprietary interests be held?- In Rem - The legal recognition that you have exclusive rights to the enjoyment of

something against all the world- In Personem – a contractual agreement to the use of a property by a person- Bailment – Bailee is whoever possesses a chattel at a point in time (if I borrowed your

car, I am the bailee while I have it)o Bailment can be trumped by ownership (In Rem)

Ways property interests can be protected:- Contract – if property is held In Personem

o WHY? Contractual obligations exist that can’t be violated- Torts – if property is held In Rem or by bailee

o WHY? Right to exclusive enjoyment exists that can’t be violated by rest of the world

o TYPES: trespass to real or personal property, nuisance, negligence, detinue (wrongful detention of a person)

What is property? General and development of classification of property & 2 main types - Ever expanding – debts, shares, real property, personal property, trademarks, celebrity

personalitieso classification developed case-by-case over 1000 years, coming from post-1066

Norman system of feudalism where land was all-important- REALTY (real property) - PERSONALTY (personal property) – chattels real and chattels personal

What are the 2 types of realty?Both are hereditaments – which means they can be inherited

- CORPOREAL HEREDITAMENTS:o you can touch it, have possession of it e.g. land, and normally anything attached

to the land (i.e. fixtures) becomes a part of it e.g. buildings, crops, seeds - INCORPOREAL HEREDITAMENTS:

o rights arising from land, but not land itself – only 2 of these remain Easement: a privilege without profit (e.g. a right of way over

someone else’s land (the dominant title), right to put drain or cable across it) given by grant (usually for a price) or by

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prescription (e.g. historically after 20 years got right of support for artificial structures from neighbours land)

Profit á prendre: right to take the profit from land e.g. wheat, gravel

What are the types of personalty? Describe each- Chattels real – such as a lease, which has become more like realty- MAIN TYPE = ‘pure personalty’: Chattels personal – 2 types:

o Chose in possession – these are tangible things that you can take possession of eg- goods rather than services or moneys

Fungible: general things such as lumber – each item is considered identical and interchangeable and usually sold in units or by weight

Non-Fungible: individualized things o Chose in action – abstract things that only get value through legal action

Debts Commercial Papers- written promises

Bills of exchange – IOUs that can be sold Promissory notes Cheques

Documents of Title – bill of lading Industrial or Intellectual Property – copyrights, trademarks, patents Stocks/Shares

NOT SURE IF NEEDED:(1) Fungible (i.e. each item considered identical, interchangeable e.g. raw materials

– if things sold as ‘so many units’ or ‘so much weight’ they are unascertained, and they become ascertained when the particular things are set aside for delivery; future goods such as wheat, cotton, steel, are the anticipated produce of agriculture or manufacture, and so they are unascertained and hence fungible)

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AIR SPACE

MAXIM – “whoever owns the soil, holds title up to the heavens and down to the depths”

Kelson v. Imperial Tobacco, Co.

RULE – maxim is interpreted literally and accepts ‘up to the heavens’ FACTS –

- Overhanging sign protrudes by 8 inches above land controlled by a lessee (tobacconist)- Property owner had given permission for sign to be there- Lease did not exclude property rights to air above retail space

ISSUE – Does lessee have right to air above land through the lease? If so, what is the solution to the sign?HELD –

- Lessee has property rights unless lease excludes them – so it doesn’t matter that owner approved the sign since the lease didn’t exclude air rights

- Property rights to airspace are unlimited (to the heavens)- Injunction due to trespass (discretionary equitable remedy)

o Not nuisance because no damageo No damages because that would be like putting the lessee’s rights up for sale

Bernstein v. Sky Views and General Ltd.

RULE – maxim is limited to the height necessary for ordinary use/enjoyment of landFACTS – D flew “over” P’s house to take picture of it (not necessarily right over it)

- P claims trespass – even though photos could’ve been taken adjacent to the propertyo WHY? Privacy not recognized by common law until more recently; nuisance

would’ve required multiple actionsISSUE – Is it trespass for a plane to fly over the property?HELD –

- distinguished from Kelson (which would’ve found trespass)- only trespass if it is within a height necessary for ordinary use or enjoyment of land and

the structures on the land- above this height, land owners have same rights as rest of the public- Policy Considerations – balancing rights of land owners with those of public in day of

aircraft

Hashem v. Nova Scotia Power Corp.

FACTS – - P built airport without checking registry about adjacent RoW- D built transmission towers along a RoW on adjacent land (in an easement)- P says he can’t use airport anymore

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- P claims action of both public and private nuisance – not trespasso public nuisance - would’ve had to have interfered with rights common to all (not

as important)o private nuisance – would’ve had to interfere sufficiently with P’s use and

enjoyment of landISSUE – Are the towers a nuisance – public or private?HELD – No nuisances proven

- WHY?o adjacent landowner owns airspace up to the height needed to build towers

(structures as per Bernstein) to exclusion of aircraft using nearby airporto Other pilots could use airport still – problem was in P’s head (subjective problem,

and nuisance requires objective problem)o RoW was already in place when P built airport – so P could’ve known about ito Just because P was using air first didn’t mean he had the exclusive right to use it

- NOTE – if RoW hadn’t been there first there probably would’ve been nuisance which would’ve led to injunction to remove poles

- NOTE – if other pilots had been unable to fly it would have been objective but since Row would’ve still been there first P still would’ve probably lost

AG of Manitoba v. Campbell

RULE – rights go only as high as ordinary use – which doesn’t include useless structuresFACTS –

- Campbell built metal structure to block municipal airport traffic from going over his land- ‘metal finger’ in the sky obstructed night flights- AG claims nuisance

ISSUE – Does Campbell have a right to build the metal finger?HELD –

- Campbell’s rights only extend as high as ordinary use of land - Structure is useless and reflects a tantrum not an ordinary use- Nuisance – finger has to go

Lewvest v. Scotia Towers

RULE – airspace over your land is protected against trespass, even if your motives are poor (ie- you don’t use the airspace and are looking to just make some moola) *uses Woollerton ruleFACTS –

- Contractor uses crane that swings over P’s land (temporary and intermittent intrusion)- D saves over half a million by having crane swing over land- P claims trespass with intent to make money (only values the airspace because D wants

it)ISSUE – Is it trespass, even though P doesn’t use airspace?

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HELD – Trespass has occurred- Doesn’t discuss ‘ordinary use/enjoyment’ rule used in Bernstein- Seems to apply the maxim/Kelsen approach

Woollerton v. Costain

RULE – airspace over your land is protected against trespass, but if your motives are poor (ie- you don’t use the airspace and are looking to just make some moola) judge will try and balance societal needs with your greed FACTS – D is a construction company whose crane swings over P’s land without causing inconvenience

- If D didn’t use airspace then it would have to block the street- P claims trespass

ISSUE – Is it trespass?HELD – yes, it is trespass because there are property rights to air

- Granted injunction to remove crane but delayed its application until D thought they’d be done

- Court didn’t want to set anti-property right precedent but also thought the claim was frivolous

- NOTE – pre-Bernstein so no mention of use/enjoyment height

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SUBTERRANEAN AREAS

Edwards v. Sims

RULE – maxim applies underground – regardless of whether or not you have access to caves- NOTE: Statutes now cover natural resource rights below ground, but this common law

ruling still applies to cavesFACTS – Edwards owns land with an entrance to a cave and gives tours

- Sims (judge), on behalf of Lee (who wants to know if caves are under his land, even though he has no access), orders a survey of cave to see if it does

- Edwards tries to stop the survey- In order for survey to be allowed, it needs to be trespass if the cave is under Lee’s land

ISSUE – Do Lee’s property rights extend downwards (despite lack of access) so that the cave tours would be a form of trespass? HELD – Yes, property rights extend to caves below, even if owner has no accessDISSENT –

- If Lee had access it would likely be trespasso Policy Consideration – whoever can use something should have ownership over

it- Analogizes caves to airspace – doesn’t want to give rights to Edwards though

o You deserve property rights IF you can make use/enjoyment of the caves OR your surface use/enjoyment is affected

o You deserve property rights IF you can bring area under your dominion (have access/control)

- Policy consideration – Lee shouldn’t be allowed to benefit from Edward’s investment in a commercial venture

Hammonds v. Central Kentucky Natural Gas

RULE – maxim applies underground only if it is under your dominion (control) – ferae naturae- When something (gas, water, timber) is in its natural state it is part of real property and

not a chattel. If contained or removed from the land, it becomes personal property (chattel). If it is returned back to the land it once again becomes part of the real property.

FACTS – D pumps gas into natural space below ground (not a constructed container)- P claims gas is trespassing below their land

ISSUE – Is the gas trespassing?HELD –

- It cannot be a trespass.o WHY NOT? o Compares gas to wild animals and water, which are only yours if under your

control/dominion

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o As soon as gas was returned to its natural state (underground natural chamber) then it was no longer a chattel and didn’t belong to anyone (unless they re-assert dominion over it)

- NOTE: If gas could’ve trespassed, it could have been approached like Edwards v. Sims and been a trespass

- NOTE: If it had been after Bernstein, the use/enjoyment test could’ve been applied and made it not a trespass

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FIXTURES

What does it mean to have fixtures in personalty?- Usually the greater in value absorbs the lesser in value through accession

o Accession: the physical integration of parts that remain identifiable as separate parts

- They no longer have a separate existence – at least no in a useful sense- They can’t be taken apart without damage

What does ‘fixture’ mean in terms of realty and how does it happen?- Term that relates to how personalty becomes a part of realty through a joining together

of parts through affixation/annexation

Re Davis (1954) (Ont. H.C.)

RULE – TEST: to decide if something is a fixture, you have to look at the degree of annexation (how well they were connected to building) and object of annexation (why they were affixed to property – to improve the building/land to enhance its value or to improve the usefulness of the thing itself)FACTS – widow had interest in 1/3 of husband’s realty estate, which had bowling alleys clipped down inside a buildingISSUE – were bowling alleys part of realty (fixtures) or were they chattels (personalty)HELD – bowling alleys are chattels not fixtures

- Degree of annexation – not very permanent, just clipped in so easy to remove- Object of annexation – done so that bowling could be done more easily, not to improve

the building

La Salle v. Camdex (1969) (B.C.C.A.)

***LEADING BC CASE ON FIXTURES***RULE – prima facie fixture if attached (accept the first impression unless otherwise refuted)

Stack v. T. Eaton Test (1902) – 3 steps 1. What is the prima facie characterization? This wins unless otherwise refuted

If attached by anything more than its own weight it is a fixture If not, it is a chattel

2. Is it objectively otherwise characterized? – gotta be clear for all to see! Degree of annexation? Object of annexation? Most important: doesn’t matter what the intentions were when the item was

affixed. You gotta stay objective and only consider their intentions to the extent that you can presume them by looking at how well the item is attached and by

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observing the purpose of the attachment… can’t go and ask someone why they attached it and then use that as part of your reasoning.

FACTS – someone is waiting for a carpeting bill to be paid- Carpets were laid down in a hotel- If they are fixtures, the interest in the building should have been registered with land

agency, but they weren’t.- If they are chattels, then there are no issues.

ISSUE – Are the carpets fixtures or chattels?HELD –

Court applied Stack Test – 2 steps

1. Prima facie: fixtures because they are stapled down2. Objective degree of annexation: slight, because easily removed without causing more

than trivial damage – suggests that they are chattelsObjective object of annexation: to improve building as a hotel, which shouldn’t have loose carpets – suggests that they are fixtures

o NOTE: if a building is classified as specialized, it is more likely that the object of annexation will be to improve the building – fixtures not chattels

o But, in a more abstract sense you could just argue that it is a building with multiple rooms, more than it is a hotel… hotel could be turned into hospital where carpets not wanted. So it is important to consider the level of abstraction when deciding the relationship of a chattel to property

- Test Results: Court gave more weight to object of annexation than to degree, and ruled that carpets were fixtures

Diamond Neon v. Toronto Dominion (1976) (B.C.C.A.)

RULE – - a K with a previous owner regarding a chattel on land will only be honoured if it is

registered against the title as a restrictive covenant- If it isn’t, look to degree and object of annexation- DISSENT –

FACTS – - P is a sign maker- Previous property owner had a K with P to make a sign to put on a pole that was sunk

into concrete and attach it to advertise a business- K said ‘sign’ will remain property of P, that it was only leased to previous property

owner, and that it is not a fixture- Property is sold and sign ends up with D, who then removes the sign and sells it

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- NOTE: K doesn’t bind D because it wasn’t registered against the title of the land as a restrictive covenant. If it had, the K would have ‘run with the land’ and D would have had to honour it.

ISSUE – is the sign a chattel or a fixture?- If it is a chattel, D committed tort of conversion- If it is a fixture, the signs were a part of the land when it was sold and P has no remedy

HELD – Sign is a fixture- Decided by looking at degree and object of annexation

DISSENT – - Sign has a separate value, as shown by the fact that it was removed and sold- Since the sign was related to a particular occupant, it should be a chattel (Dr.’s name)- If the sign was related to the property itself, it should be a fixture (address)- BUT if the sign was generic and was likely to apply to future uses of the property, then it

could be a fixture (‘cars for sale’ sign on an obvious car lot)

L&R v. Nuform (1984) (B.C.S.C.)

RULE – if machinery is attached to steady it – it is fixtures. Constructive fixtures (forklift truck, backup parts, etc…) are fixtures too since they are required for running of the operation.FACTS –

- There are 2 security interests in the property – which was used to manufacture papier mache pots

- First is in the building and second is in machinery which is installed in the building- Much of the machinery is anchored to the floor or the building

ISSUE – Is this like Re. Davis, in which the machinery is just inside a building but still separate? Or is it more like La Salle, in which the building is specialized and the machinery is a part of the property?

- Are machinery fixtures or chattels?HELD – Machinery are fixtures. Non affixed tools are “constructive fixtures.”MACHINERY:

- Building and machinery are integrated so as to be a whole entity- Degree of annexation: some evidence that removing key parts of machinery wouldn’t be

trivial and would cause substantial damage AND that key parts were fairly permanently affixed

- Object of annexation: argument was made that the anchoring of machinery was objectively to avoid vibration and make operation of machinery safe

o Court said attaching it to steady it is not inconsistent with doing so to improve the building

CONSTRUCTIVE FIXTURES:- Because building + machinery = single operation, non-affixed tools are constructive

fixtures - WHY? Because they are required for ordinary running of operation- NOT included as constructive? new parts not yet attached or not currently required by

operation

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Lichty v. Voight (1977) (Ont. Co. Ct.)

RULE – In ONTARIO, court rejected LaSalle/Eaton Test, and considers subjective intention instead of just objective.FACTS – P put mobile home on farmland

- Sold farm to D with understanding on both sides that mobile home would be removed- P couldn’t move mobile home before close of sale because of weather- D claimed title mobile home only after learning they could…

o ON Prop. Act said they could keep anything on property not specifically excludedISSUE – Was the mobile home a chattel or a fixture?HELD – Mobile home is a chattel

- Degree of annexation: some degree (septic tank and concrete pad) but could be removed pretty easily without much damage (considered context of it being on farmland)

- Object of annexation: rejected Stack Test as a clear statement of law. Looked to subjective intention, which was clearly that P intended, and D understood, it to be a chattel

- NOTE: common law therefore differs in BC and Ontario, so you could argue for subjective intention at SCC!

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RIPARIAN RIGHTS

DEFINITIONS

What are the 3 categories of water –their definitions and their general property rights?

1. SURFACE WATER – rainwater, snowmelt, any water the ‘squanders’ itself- In case of flood, according to common law:

o you can protect your property (sandbags to divert) even if by doing so you flood neighbor’s property – not obligated to accept the flow of surface water onto your property

o you can’t pump water that is already on your property onto your neighbor’s – if you have had some sort of control over the water, you can’t release it elsewhere

2. WATER IN A WATER COURSE – water in a defined channel, either on surface or underground (lakes, seas, rivers, underground streams, etc…)

- Subject to Riparian Rights- Riparian land is at border of land and water – where the two meet

o Tidal water (seas and tidal rivers) riparian land is at the mean high-water mark

3. PERCOLATING WATER –underground water that trickles/oozes like water through a sponge – not a watercourse because it isn’t in a defined channel

- Rights?

What do we need to know about our riparian rights?- Mostly subsumed by BC Water Act (mostly gone)- Considered a ‘natural right’ that comes along with the land itself- They came from England, which is wet, so not always appropriate in other places where

water isn’t always available

What are common law riparian rights associated with – - Ordinary use? - Extraordinary use? - Flow?- Access?

ORDINARY USE: domestic or stock watering use- Right to deplete water completely as long as used ordinarily

EXTRA-ORDINARY USE: irrigation and commercial use- Right to take reasonable amount without significantly reducing volume/flow OR

form/quality

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FLOW: Right to have its flow relatively unaltered – both in quantity and qualityACCESS: Right to access to and from water is affirmative – Sword more than a shield

2 Conflicting Judicial Opinions in BC – Riparian Rights (1 back-up plan )

- must discuss both in any case, but #2 is likely more persuasive- no SCC decision, only BC

1. Johnson = riparian rights remain for water in defined channelo EXCEPTION: if another party has authorization to it

2. Schillinger (in semi-obiter) and Steadman (trial) (in obiter) = riparian rights have gone

Back-up Plan: - regardless of riparian rights existing or not, a landowner could still sue for nuisance

(diminished use/enjoyment of land)- if you were using water but then it was interfered with, you could always try nuisance- make sure your use is lawful, otherwise you will get screwed, as they did in Schillinger

Johnson v. Anderson (1937) (BCSC)

RULE – JUDICIAL OPINION #1 -riparian rights still exist unless you are up against a party with authorizationFACTS – D had a license to use water but not to divert it from stream

- D diverted water and diminished flow- Stream ran through P’s land- P used water for domestic and stock purposes (lawful by Water Act s.42(2))- P claims that riparian right of flow has been violated

ISSUE – Is there a riparian right to flow for domestic purposes?HELD – right to use and flow exist to protect against an unlawful diversion – diversion was unlawful/unlicensed, so P can claim D was infringing on their riparian right of flow

- Interpreted Cook v. City of Vancouver (1912) (J.C.P.C.) to say riparian right of flow taken away only against someone who had license to divert water NOT to say that riparian right of flow was taken away completely

- Water Act didn’t specifically preserve riparian rights from previous Act, but court interpreted certain rights to have been intended to remain

o Court striving to preserve riparian rights in face of strong indication that legislature wanted to do away with them

- By s.42(2) of Water Act riparian owner could still use water until all water flowing by or through land has been granted by license

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Steadman v. Erickson Gold Mining – PRE-APPEAL (1987) (B.C.S.C.)

RULE – JUDICIAL OPINION #2 – Riparian rights are extinguished (in obiter dictum = not essential to the decision and not establishing precedent)FACTS – P was piping water into his house from spring-fed dugout on his land for primarily domestic purposes

- P’s use was lawful under s.42(2) of Water Act (which allowed diversion and such works as necessary for diversion for domestic uses)

- D built road that resulted in a contaminated water system- P claimed nuisance

ISSUE – nuisance was found – right to unpolluted waterHELD – said Johnson was wrong (obiter dictum) and that s.2 of Water Act took away riparian rights

NOTE in Bryan’s Transfer v. Trail

RULE – It is within the power of PG to extinguish riparian rightsFACTS –ISSUE –HELD –

Schillinger (1977) (B.C.S.C.)

RULE – JUDICIAL OPINION #2 – Riparian rights are extinguished (semi-obiter)FACTS – P uses water downstream from D for fish cultivation

- P has authorization to divert from a point upstream from D- D puts silt in river that kills the fish- P claims nuisance - usually decided by balancing act, in which P’s unlawful actions will

limit their chances of winning

ISSUE – Has D interfered with P’s riparian right to divert water that is un-altered in quality?- If so, can P claim nuisance?

HELD – No riparian right to water use, so no nuisance

Defendant silting water here

Plaintiff actually diverting water from here

Plaintiff authorized to divert water from here

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- P was diverting from a place that wasn’t authorized- P could only have their unauthorized use protected if it was domestic (such use was

protected by s.42(2) of Water Act)- P’s use wasn’t domestic so couldn’t rely on s.42(2)- Court says other riparian rights were extinguished by Water Act, so P can’t rely on them

NOTE – court could’ve considered illegality of pollution and then balanced 2 parties’ without making strict ‘no more common law riparian rights’ rule

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WATER SUSTAINABILITY ACT

MEMORIZE –

S.1 Definitions:

Authorization = a license or use approval (unless referring to drilling authorization)

Groundwater = water below surface of groundNOTE – common law has established that underwater streams fall under riparian rights

Stream includes:o natural watercourse or source of water supply, whether usually containing water

or noto ground water (but see s.5 below)o lake, river, creek, spring, ravine, swamp and gulch

Unrecorded water = water the right to use of which not held under license or under a special or private Act

Aquifer = geological formation(s) and those that provide groundwater

S.2 Defined Purposes:

Domestic purposes = for household (hotels and strata buildings included, but not multi-family apartment buildings) use:

(a) drinking water, food prep & sanitation(b) fire prevention(c) provide to animals and poultry – household use and pets only (d) and irrigating small gardens that are adjoined and occupied with a dwelling

S.5(1) – title and right to use and flow of all water in any stream in BC is vested in government EXCEPTION: if private rights have been established under authorizations

S.5(2) – title and right to use, percolation and flow of all groundwater is vested in government (a) EXCEPTION: if private rights have been established under authorizations

S.5(3) – can’t acquire a right to divert or use water by prescription- prescription = way to acquire property by use/enjoyment of land openly and peacefully

for a prescribed period of time

S.6(3)(a) – it is not an offence to divert unrecorded water for domestic purposes or prospecting for a mineral

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- NOTE: it is lawful but doesn’t give you a right to use unrecorded water- Lawful = shield to protect your actions. You can’t be sued and you can argue nuisance is

somebody interferes with your use/enjoyment - Right = sword to assert your entitlement. You can sue someone for taking it away

S.6(4) – you may divert groundwater for domestic purposes unless regulations say otherwise

UNDERSTAND –

S.6(1)– can’t divert water from, or use water that was diverted from, a stream or aquifer EXCEPTIONS – (a) you have authorization

(b) the diversion is authorizedS.6(2) – not an offence to

(a) divert or store to extinguish a fire as long as you restore it as soon as you are done (b) divert it to test quality, quantity or flow

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PERCOLATING WATER

Bradford v. Pickles (1895) (English H.L)

RULE – Landowners can extract percolating water for any purpose – including wasting itFACTS – D owns land above P

- Water collects underground D’s land and percolates down to P’s land- P collects water and it supplies town- D sinks shaft down and drains percolating water that has collected under his land so that

flow and quality of water that makes it to P is diminished- P suggests D is only doing it to extract money from city- Statute exists that says D couldn’t extract water

ISSUE – Who has right to percolating water and is that right limited to only reasonable use?HELD – D has right to water and his motives for use are irrelevant

- P has no right to receive percolating water- If it had been an underground stream, riparian rights would have applied at the time

o P’s use would not have counted as ordinary!- Statute only gave P right to take or divert water that was already under its dominion

NOTES:1) Distinguished from ‘metal finger in the sky’, in which it mattered how he expressed his

property rights – it was useless so it couldn’t reasonably interfere with airport’s rights2) Compare with wild gas in Hammonds 3) Penno and Pugliese cast considerable doubt upon applicability of this case in Canada today

- Pugliese – no absolute right to percolating water; right needs to be balanced against right to support (also not absolute).

4) Modern legislation probably overrides this case as well.

Steadman v. Erickson APPEAL (1989) (B.C.C.A.)

RULE – Nuisance to pollute groundwater or watercourse water – Groundwater (stream nor percolating) wasn’t in Water ActFACTS – See TrialISSUE – Is it a nuisance if groundwater OR watercourse?

1) If groundwater, since groundwater wasn’t in Water Act, what law applied?2) Was it even a groundwater issue? When does percolating water taken from a spring or

well become a watercourse?HELD –1) If groundwater, common law rules applies.

i) riparian rights apply to underground streams (use and flow in quantity and quality)ii) percolating water is common property, and anyone can appropriate as much as they

like

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But either way it would be nuisance to pollute groundwater to detriment of neighbour, even if neighbour had no proprietary right in water at time of pollution

2) Court couldn’t decide if it was groundwater, so also considered case as if watercourse:- If watercourse P’s use is protected by s.42(2) of Water Act because it was a domestic

use of unrecorded water – right to unaltered flow and quality

DEFINITIONS – Water Protection Act (1995)

- Gave title and right to use of percolating and groundwater to government- Made it so that Water Act applied to both underground streams and percolating water- NOTE: s.42(2) still allowed domestic use of unrecorded groundwater

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OWNERSHIP OF BEDS

GENERAL RULE: - Foreshore, tidal, or navigable water beds = province- Non-tidal and non-navigable water beds = ad medium applied (in the past)

DETAILED RULES:

What is ad medium rule?- riparian land owners on either side own their half of stream bed out to centre of stream,

unless otherwise stated / intended with knowledge on both sides-

What are the riparian rights for the following:- Foreshore?- Sea bed?- River/Stream bed?

Foreshore: where the tide washes- Between low water line and mean high water line (doesn’t include extreme tidal lines)- Owned by province- Land up to mean high water line is riparian

Sea bed: constitutional issue between feds and prov.

River/Stream bed: - Tidal – treated like foreshore, and bed is owned by province- Non-Tidal –

o Navigable – like a highway and vested in province - BCo Non-Navigable –

if there is an old certificate of title, ad medium rule applies if there is a newer certificate of title, ad medium rule does not apply as

per s.55 and s.56 of Land Act

Micklethwaite v. Newlay Bridge (1886) (English C.A.)

RULE – ad medium applies- even if the bed wasn’t clearly shown to be divided on maps or area wasn’t expressly

included in title- UNLESS there is a known intention otherwise

FACTS – P’s predecessor owned both sides of river- Predecessor sold land on one side of river (eventually came to be owned by D)- During sale, described as “bounded on north by river”; map didn’t show ad medium

boundary; calculation of land area also didn’t include half of river bed

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- D now wants to build a bridge across disputed part of stream bed- Bridge would be free and undermine P’s toll bridge

ISSUE – Should ad medium rule apply, although it was never explicitly stated at original sale?HELD – Ad medium applies by presumption

- It is a rule of construction not common law – AKA it should be presumed to apply to assist courts in interpreting property cases (common law would also apply unless expressly contracted away)

- EXCEPTIONS: o if express statement in conveyance says otherwiseo if circumstances, known to both parties, existed at time of conveyance that show

the original vendor intended to make use of the stream bed – must be strong enough to rebut presumption

- Policy Consideration: the half of the stream bed closest to you can be most usefully used by you

Canadian Exploration Ltd v. Rotter (1960) (S.C.C.)***NOTE: See Torrens system outlined below***

RULE – ad medium rule still applies in Torrens system, if property is ‘bounded’ by non-tidal/non-navigable streamsFACTS – P removed large quantities of sand and gravel from riverbed, both on own side and D’s

- P clearly owned own half so no damages due for that ISSUE – Does ad medium rule apply? Did the Land Registry Act exclude the ad medium rule for certain certificates of indefeasible title in BC?HELD – ad medium still applies under BC torrens system for land described as being bound by a non-tidal and non-navigable stream

- Legislation could take ad medium rule away but not with Torrens systemo WHY NOT?o Practical difficulty in surveying middle of streams and staking them outo Ad medium principle is too deeply embedded to be disturbed or doubted

- There was clear intention that half of bed should be transferredDISSENT – the point of Torrens is to stop us from having to look into the past to try and figure out titles

- The majority ruling makes such searches necessary to figure out who has bed rights, if land is bound by non-navigable and non-tidal streams

Simpson v. Ontario (Re: navigability) -

RULE – FACTS –ISSUE –HELD –

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Land Act, 1961 - s. 55 & 56

***NOTE: after Rotter, legislature phases out ad medium rule***

s.55(1) – no part of bed or shore passes to another party acquiring grant- EXCEPTIONS:

o red colour is used on mapo express provision to the contraryo minister directs otherwise

s.56(2) – doesn’t apply to claims decided by court before 1961 OR to indefeasible titles issued before 1961 that specifically include beds

- NOTE: since new certificates are issued every time land is sold, this will slowly phase out the Rotter decision

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ACCESS BY RIPARIAN OWNERS

District of North Saanich v. Murray (1975) (B.C.C.A.)

RULES –1. General ACCESS & MOORING Rights – if you have riparian rights you have right to go to

and from water and to moor your vessel for as long as it takes you to load and unload, regardless of who owns the bed.

2. TIDAL ACCESS Rights – if you have riparian rights (to high mean water mark), you have right to cross foreshore and to use pre-existing structures but not to construct on it (unless crown gives permission)

3. LIMITATIONS – can’t interfere with others’ access rights or public navigation rightsISSUE – Does a riparian owner next to the sea have the right to built structures on the foreshore? (such as wharves)HELD – No right to build structures.

Welsh v. Marantette (1983) (Ont)

RULE – Navigable rights to an artificial waterway exist if the natural version of it was navigable = useful as a public highway, with access and predictability of use to support commerceFACTS – D widened a natural ditch to create an artificial channel to a creek (ad medium not applicable)

- P’s land adjoins the channel- P claims right to navigate the channel to reach the creek

ISSUE – What rights does P have to the channel? Access? Navigation?HELD – artificial waterway doesn’t afford rights – must look to original watercourse, ditch, and then extend its rights to the artificial waterway.

- Ditch had distinct flow, and counted as a ‘stream’ but did not count as a navigable waterway.

o For there to be navigation rights, a watercourse must be useful as a public highway – public could use it for transportation or commerce between terminal points that public can access. Doesn’t include every small watercourse, so ditch didn’t count.

o Doesn’t need to be continuously accessible for navigation rights to exist. BUT any fluctuations in flow that would affect navigability (rapids from swollen flow or freeze-ups) must be predictable and dependable so that commerce can work around it

- So, P has riparian right of access and moorage to channel because ditch was a defined watercourse

- P does not have right of navigation because ditch wasn’t navigable- Policy Consideration – navigable rights exist for waterways if they can support

commerce – public access & predictable

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SUPPORT

What is the right of support?- Natural right attached to land in its natural state- EXCLUSIONS – doesn’t apply to any additions, such as buildings; only applies to

neighboring land- Frequently linked with tort law- Can purchase easement for support for buildings from neighbors

What are the 2 aspects of the right of support?

1. HORIZONTAL/LATERAL SUPPORT – support from the side.- If neighbor removes horizontal support and land with house shifts and results in house

falling over…you must prove that the land in it’s natural state would have shifted if you want to claim that your right to support was violated

- If the weight of the house on the land caused it to shift, then you will have no right to support since it only protects against shifts of land in its natural state

- If you can’t prove right to support was violated, there is always nuisance!

2. VERTICAL/SUBJACENT SUPPORT – support from below- Neighbor digs below you and land falls – house is destroyed- Must prove that land would have fallen in its natural state without the weight of the

house to push it down- Helpful that gravity is always present to force land down and establish right to vertical

support was violated- If you can’t prove your right to support was violated, it could also be a case of trespass!

Cleland v. Berberick (1915) (Ont H.C.)

RULE – FACTS – P owns beachfront property next to D, who is bounded by D’s wife’s (DW) property on other side

- D and DW both remove sand from beaches- Wind and water action increases and moves sand off P’s beach- P claims D’s sand removal caused it- D claims DW’s sand removal caused it

ISSUE – Did D’s sand removal cause P to lose sand?HELD – D’s sand excavations were primary cause of P’s loss through indirect storms

- P had a right to support of his land by D’s land – in its natural state- D’s removal of sand facilitated nature’s interference with P’s beach- it matters who caused sand loss, because only neighbors can violate right to support- If DW is cause then there is no case

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Bremner v. Bleakley (1924) (Ont.App.Div.)

RULE – if sand is naturally blown off of land it no longer belongs to land owner. Neighbor can prevent its return without violating a right to support.FACTS – P has sand on land that is often blown about

- D has neighboring property and digs holes to catch sand off of P’s land- Sand that is caught on D’s land can’t return to P’s- P claims loss of support – not the best case, but they chose it anyways

ISSUE – Does P have a right of support that D violated by digging holes and collecting sand?HELD – P has a right to support but D’s holes didn’t violate it

- there is not a strong enough chain of causation and P doesn’t have a strong enough claim to ownership of sand

- when sand is blown off property it becomes a natural item, which is only owned if trapped – ownership of sand doesn’t stick with P when the wind moves it around

- D did not cause loss of sand, only caused it to not return- claim on nuisance would’ve been better – could argue that P lost enjoyment of property

because of D’s actions

Gillies v. Bortoluzzi (1953) (Man. Q.B.)

RULE – responsible for supporting the natural land, not the weight of additional structures- if you dig under, regardless of whether or not there are additional structures, a loss of

support is assumed to be claimable because of gravity – can’t blame weight of buildingFACTS – P leased a building and D was excavating neighboring land – removed lateral support and vertical by undercutting P’s building

- P’s wall fell down - P claims loss of support, negligence and nuisance - NOTE – could’ve brought action against neighbor rather than contractor

ISSUE – Is D responsible for loss of support? – lateral or verticalHELD – D isn’t responsible for lateral support because weight of building is more than that of natural land

Rytter v. Schmitz (1974) (B.C.S.C.)

RULE – not a right to lateral support when pressure is increased by building being on land. Is generally a right to vertical support, even with a building on land… cuz gravity!FACTS – D excavates on land beside and beneath P’s land

- P’s building partially collapsesISSUE – does P have a right to lateral support of increased pressure to land (caused by building)? Does P have right to vertical support?HELD – P had no right to lateral support of land with added pressure of the building

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- P had right to subjacent/vertical support, because gravity would have caused land to collapse even without the building on it

- NOTE: right to support is strict so no need to show intentHISTORY LESSON:

- There was a law of prescription that awarded a right to lateral support easemento IF the building and land it was on had 20 yrs of uninterrupted support and

everything was on the up and up- These prescriptive rights were cancelled in 1976 under the land registry system, BUT

pre-existing prescriptive rights could be registered before 1976

Welsh v. Marantette (1983) (Ont)

RULE – No right to support of ‘fill’ because it isn’t a natural part of your land – fill is an addition/structureFACTS – D owns widened channel (used to be a ditch) and P’s land borders channel

- P claims D’s widening of channel caused erosion to property – wake of boats, fluctuation of levels, ice grip. Eroded soil was fill.

- P claims loss of lateral supportISSUE – Is there a loss of support if fill, rather than the original land, is being eroded?HELD – no right of support for fill. Because erosion was not of original land the claim must be dismissedNOTE – there must be some point when fill becomes natural. There is no ruling in Canada on this but other jurisdictions have looked to the level of integration between layers

Pugliese v. National Capital Commission (1977) (Ont. C.A.)

RULE – No absolute right to either be supported by or to extract percolating water – negligence and nuisance are your available remediesFACTS – D built sewer and dewatered to allow tunneling

- D had statutory permission to pump out water but pumped more than allowed to pump- P’s homes and lands lowered from lowering of ground water table- Ps claim negligence (should’ve taken more care), nuisance (interfered with use and

enjoyment), breach of statutory duty (took too much)ISSUE – Is there a right to support by percolating water? Is there a right to extract percolating water?HELD –

- RIGHT TO SUPPORT v. RIGHT TO EXTRACT - No absolute right to support of percolating water - No absolute right to extract percolating water - NEGLIGENCE – can be found if there was foreseeable risk and a reasonable person test

is applied to see if proper standard of care was taken- NUISANCE – private nuisance can be found if there is interference for a substantial

period of time with the neighbor’s enjoyment of their property. NOT about if D’s land

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use is reasonable, but whether it was reasonable considering they had a neighbor. NOT a defense to say you took all reasonable care. NOT a prerequisite for negligence

o ALL ABOUT A BALANCE BETWEEN PROPERTY OWNERS

- BREACH OF STATUTORY DUTY – Qs to consider if deciding there is a tort to be had:1. Was the object of the breached provision to prevent the damage that

occurred? AKA - did the statute exist to prevent subsidence? NOPE2. Was provision intended to create a public duty only or to also create

an enforceable duty to those harmed? AKA - did the provision exist to protect P from subsidence? NOPE

3. Were statutory punishments meant to be the only remedies available? AKA – were P supposed go un-remedied by statute if the provision was breached? YUP

4. Would those who would benefit from the provision not being breached be left without options if the provision was breached? AKA – would P be screwed by the breach and without recourse options? NOPE – they have nuisance and negligence

Hence no civil remedy for breach of statutory duty in this case.Note: this tort action restricted by later case Saskatchewan Wheat Pool Case (1982) (S.C.C.)

OPTIONS IN OTHER JURISDICTIONS FOR PUGLIESE:

ENGLAND – - Right to Support v. Right to Extract:

o Acton v. Blundell, 1843 – owner has absolute right to extracto Bradford v. Pickles – absolute right not limited by motivation of ownero THEREFORE: no right to support if percolating water is removedo BUT: right to support if silt, brine, etc… are removed, causing subsidence

- Nuisance and Negligence:o Langbrook v. Surrey, 1969 – no negligence due to absolute right to extract and

fact that you could extract with malicious intent. No nuisance either.AMERICAN –

- Right to Support v. Right to Extract: o Varies between states – some absolute right to extract; some right but limits if

sole purpose is to harm neighbor or waste it. Some use a ‘reasonable use doctrine’.

- Nuisance and Negligence:o Negligence if user could have reasonably avoided harm to neighbors or taken

reasonable precautionso Nuisance also allowed

AUSTRALIAN –

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- Both negligence and nuisance allowed

ACCRETION

What is accretion?- Gradual and imperceptible (in progress – even if you can see the effects eventually)

growth or reduction of land at water’s edge- OPPOSITE = avulsion – sudden or perceptible

MUST BE:- Gradual- Imperceptible- Naturally caused or result of human activities that did not intend to grow/shrink land

How can land at the water line grow or reduce?- GROW –

o banks are built up and extended when deposits are carried in water and left at shoreline

o water recedes and exposes more shoreline- REDUCE –

o Erosion o Advancing water

What happens if shoreline extends in tidal cases?- Becomes part of riparian owner’s land- JUSTIFICATION –

o Fair because riparian owner can experience either accretion (more land) or losses (less land)

o Convenient because the shoreline is bound to change over the yearso Logical because newly exposed land is now manurable and owner should be

allowed to own it for agriculture

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Southern Centre of Theosophy Inc v. State of South Australia (1981) (Privy Co.) ****NOT BINDING IN CANADA****

RULES – 1- Accretion doctrine application is the presumed approach – STRONG presumption2- Accretion principle is extended to include wind-blown sand at a shoreline3- Doctrine of accretion applies to inland lakes and allodial lands4- Accretion can be excluded through explicit terms in documents5- Imperceptible extension of shoreline = not being able to see consolidation taking place

in a way that is clearly a stable advance of landFACTS – Appellant has perpetual lease of lakeside land

- Build up of lakeside land through combo of water receding and deposits in North- Build up of lakeside land from windblown sand dunes in South

ISSUE – Does accretion apply to the extension of land along the shorelines? Is the advancement of shoreline imperceptible and gradual, as required by principle of accretion?HELD – accretion applies and there is a grey area surrounding the idea of imperceptible advancement

AG BC v. Neilson (1956) (S.C.C.)

RULES –1. Accreted land can’t be foreshore. It must be above mean high-water level2. Accretion doctrine applies to tidal, non-tidal, navigable, and non-navigable rivers3. Whether or not land was manurable – AKA the logical reasoning behind accretion – not

relevant in this caseFACTS – 1930 Crown built highway along edge of an island in Fraser River (all highway titles belong to crown)

- Accretion occurs and island enlarges past highwayISSUE – Did accretion begin before or after highway was built? If before, the owner gets the new land; if after, the crown gets new land because it becomes extension of highway ownershipHELD – when the road was built, the edge of the island was still overflowed by river and was foreshore not dry land…SO, accretion happened after and it now is part of the highway and belongs to the crown

Re Bulman (1966) (B.C.S.C.)

RULE – It is only accretion if the shoreline extends, not if the bed comes up and joins. Shoreline owner only gets the new lands if they extended from shoreline.

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FACTS – sand bars and banks are formed where N. Thomson River enters Kamloops Lake and deposits a bunch of crap

- These sand bars and banks are vertically developedISSUE – Does the accretion doctrine apply to these newly formed lands?HELD – Nope. Because they came from below and didn’t spread from the shoreline.

- Whoever owns the bed gets the new lands, not whoever owns the shore.- Policy consideration of manurability is considered irrelevant

Re Monashee Enterprises and Minister of Rec. and Conservation for BC (1981) (B.C.C.A.)

RULE – a strip of land along a shoreline can’t change as the shoreline changes UNLESS explicitly described as having the ability to snake along the shore as it changesFACTS – Crown reserved a strip of land immediately above high water mark

- Private ownership of land above the reserved strip- Crown is riparian owner- Accretion occurs

ISSUE – Does the inland border between private owner and crown shift as accretion or erosion occurs?HELD – Reasons not to let the strip be ambulatory:

o Rejects practical considerations because Crown could prevent erosion of shoreline

o Shows absurd result- if erosion went far enough, crown would own underneath property owner’s house

- Words could have been made explicit enough to make the line ambulatory, but they weren’t

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PRINCIPLES OF LAND LAW

Key point – 2 systems 1. Common law2. Equity

They do not conflict with each other because they are separate

KEY EXAM POINT ON TRUST – legal title from equitable or beneficial interest

KEY EXAM POINT ON ESTATES – you are dealing with slots in time - When doing so, you need to know the measuring factor = measuring line (life?)- Reversions and Remainders should be clear to you

COMMON LAW = Tenure and Estates

Doctrine of Tenure

Tenures = pyramid of land grants; qualitative concept related to social/political/status/wealth set-up

Allodial Ownership = absolute ownership

Freehold Tenures = Granted by king to the following freemen in descending order- Tenants in Chief - Intermediate lords (Personal service tenures)- Low lords (lowest freeholders)- Serfs (copyholders – below pyramid of tenures)

Unfree Tenures = held by copyholders, who were beneath domain lords

4 Types of Tenures: reflected status and conditions of the tenure, which passed on with land; had to be certain (not related to life-span) so freeholders could know and meet obligations and random demands couldn’t be made

- Knight service tenures – Tenants in Chief- Personal service tenures – intermediate lords- Spiritual service tenures - Socage – agricultural obligation – still exists in theory

HISTORY:- 1066 AD – started as a part of feudal system - 1290 AD – Quia Emptores

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o started practice of substitution/ability to freely alienate land by allowing it to be sold. As it was sold, it dropped out of the pyramid, and it gradually flattened out

- 1660 AD – Tenures Evolution Act solidified what had been happening since 1603o tenures ceased to have practical significanceo abolished incidents of tenure but not tenure – only ones left were escheatment

and forfeitureo converted other tenures to socage

Incidents of Tenure:- aids (aid owed to overlords)- forfeiture- escheatment- marriage- wardship

Doctrine of Estates

Estates = legal right to posses and occupy land; quantitative because it is tied to a land for set time period then passes to next owner; uncertain holding because it only lasts a lifetime

- crown retains allodial ownership so it is like owning an interest in the land- when ownership ends it passes on to next owner or escheats to the crown

4 Types of Freehold Estates:1) Fee Simple: Fee = inheritable; Simple = without qualification – can theoretically be held

forever through heirs, who can be anybody. If you die without heirs it escheats back to Crown

2) Fee Tail: abolished in BC in 1921; Tail = heirs of the body - limited to lineal heirs3) Life Estate: owned for time of life span4) Autre Vie: owner for the life span of another person

Present v. Interests Present: an estate in possessionFuture: an estate in expectancy – possession will or may be obtained in the future

Ways Freehold Estates can move between owners:o REVERSION: Fee simple can be granted as life estate with a reversion (= future

interest), so that when owner dies it goes back to original owner (AKA the reversioner)

o REMAINDER: Fee simple can be granted as life estate to A then to B in fee simple, so that first owner can control it from the grave. B gets the remainder (= future interest) and is called the remainderman in this situation, has to wait for A to die.

o REVERSION v. REMAINDER: Fee simple can be granted first as a life estate and then, later, granted to another party in fee simple. The first grant created a

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reversion. The second grant assigned the reversion to the next party, so no remainder created.

o CONTINGENCY & REVERSION: Can make a contingency so that fee simple isn’t granted until contingency is met – automatically creates a reversion if contingency isn’t met

Leasehold Estate: ownership of a temporary right to hold land or property in which you have property rights to the realty, but was generally considered personalty.

Equitable Interests

- Happens when someone else is holding the title for the use or the benefit of someone else

- NOTE: Equity and common law have merged in terms of who makes the decisions – same judge for both now. But doctrinally they are still separate.

HISTORY:- Until 1870 – judges of Common Law could apply Equity laws – previously 2 separate

court systemso Common Law (exchequer for financial matters; common pleas for land matters;

King’s Bench for Ks, torts and crim.)o Equity (covered stuff inadequately addressed by common law; petitions that

were passed from king to Lord Chancellor to clerks of Chancery) didn’t try and overturn common law, just made a different set of rules to

parallel it so there could be different results without different common laws

4 Stages of Use:1) “USE” – up to 1535

o feoffments = A to B in fee simple for the use of C in fee simpleo Common law would only consider the A to B part… so under common law B was

the legal title holdero If C wanted to enforce his right to use the feoffment, he had to go to

equity/chancery o Chancery would not change legal title, but would act in personum (against the

person) to B to make sure C got to use the lando This equity enforced “use” of the property is “USE” – B is compelled by equity

courts to hold property for the benefit of C, not themselveso Why have USE?

Avoid incidents of tenure So organizations could have rights of use even if they weren’t allowed to

have legal title (land couldn’t be passed to ‘dead bodies’ such as corporations or church groups)

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2) “USE” – 1535 – Statute of Useso USE was restricting income from tenure incidentso Statute executed the “USE” and gave legal title directly to C, rather than being

the beneficiary of B’s ownership – AKA beneficiaries became legal ownerso Statute took the land out of equity and put it into common law when it gave

ownership to the beneficiaryo ISSUE: without USE, needed a way to leave land to heirs

3) “USE” – Let’s Find Some Loopholes!!o Loopholes in statute’s wording:

Statute said “anyone seized (possessing freehold) to the use of another” would invoke execution of the USE

LOOPHOLE: avoid the statute by giving leasehold (NOT title) to B for 99 years for use of C for 99 years

Statute said B was a person LOOPHOLE: avoid the statute by making B a corporation instead

of a person Statute was interpreted to only apply if B was passive in their title holding

LOOPHOLE: avoid the statute by giving B some duties –ex. maintenance

o Loophole of simply ‘exhausting’ the statute (main one!): Statute interpreted as executing only a single use – B’s – and giving title

to C LOOPHOLE: add in a second granting of use – A to B for use of C

for use of D. Statute only executes B’s title, leaving C to hold the title for the use of D

4) “USE” – Emergence of Modern Trusto the loophole of exhausting the statute by creating 2 uses became truncated for

simplicity’s sake, because the first use was just being immediately dumped First truncation: A to B to the use of B to the use of C… basically just

avoided having to put the 4th person into the mix Second truncation: A [unto and] to the use of B in trust for C (B = trustee

(user), C = beneficiary) Third truncation: A to B in trust for C

ISSUE: this flirts with the statute of uses because it doesn’t expressly show the 2 uses – statute still applies here in Canada

RESOLUTION: although it should expressly state the 2 uses, courts interpret “trust” to mean the double use

o 3 Certainties considered by courts to create trust:1. certainty of intention to create trust2. certainty in regards to subject matter

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3. certainty as to who the beneficiaries are

DOCTRINE OF NOTICE:

What happens if a trustee sells the trust to someone without telling them about the trust and beneficiary?

- Common law doesn’t care about uses/trusts since they are in equity- Equity developed the Doctrine of Notice = 2 requirements:1) Did the purchaser give value?2) Did the purchaser get notice that the land was being held in trust?

by giving notice to a purchaser that land was owned in trust, the title obtained was subject to trust = beneficiaries are protected

RULE: new owner must honour beneficial element if they gave value and they were given notice

EXCEPTION: Purchaser gets the title without having to honour beneficial interest IF the they gave value and were not given notice (actual or constructive notice – constructive means that they should’ve been about to figure out that there was a beneficiary)

RATIONALE FOR EXCEPTION: there are 2 innocents in this case and one has to lose. Only option available to the beneficiary is to sue the trustee.

Relationship of Real and Personal

5) Unlike estates, personal property is allodial – you can own the very thing, unlike estates, which you own separately from the land because ownership ultimately rests in the crown.

6) Therefore, according to common law, there is generally no ability to treat personalty as estates for the purpose of successive interests – leaving personal property to heirs and future heirs (in trust)

Property (successive Interests)

2 exceptions to the common law limitation on successive interest in personalty:

1) Re Swan (1913) (English Ch. D.)

RULE: Trust can be used to create flexible, estate-like succession for personalty by splitting legal title from use – not sure how it does this part!FACTS: - swan made a bequest (leaving personalty by will) that her jewellery/personalty be left to her daughter

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7) Swan included a remainder in the bequest – that if her daughter died childless that the personalty should go to her son

8) Daughter breaks up some of the jewelry 9) Daughter dies childless10) Son claims proprietary interest from daughter’s estate for compensation, saying that he

should have gotten the jewelry in its original stateISSUE: How should the estate-like bequest be treated? – how should the ownership be classified?HELD: Daughter was a trustee holding the personalty for the benefit/use of son. Thus, she had a responsibility to maintain the jewelry for her brother’s benefit.

How did the Court come to classify the relationship as a trustee and beneficiary?Court considered 5 ways to treat the bequest:

1) CHOSEN WAY: First taker (Daughter) is a trustee for the remainderman (son), subject to her own life interest.

NOTE: compare this model to the model used in estates… Mother to Daughter for use of Daughter for use of Son… truncated down to Mom to daughter in trust for son. 2) Ownership given to executors of estate as trustees for benefit/use of daughter/son3) Ownership belongs to remainderman (son) and daughter only has use of the the

personalty (usufructuary interest)4) Ownership belongs to first taker (daughter) and any later takers (son) have their interest

in the personalty created once the first taker’s ownership is over5) First taker is a bailee (has lawful possession but not ownership), so there is still a need

to choose the owner….(second choice)

2) Re Fraser (1974) BCCA

RULES: 11) wills can be used to grant successive legal interests in personalty – moves beyond Swan,

which only allowed for Trust to grant successive interest12) Title lies with ultimate holder + other life interestFACT: a will gave a “life interest” on all realty and personalty to a widow, with all property going to a charity once her life interest expired ISSUE: Can the widow hold the personalty in life interest? If so, she will have to pay the taxes on the personalty (a succession duty).HELD: 13) @ trial – personalty could be held by widow and she had an absolute right to encroachment

(could use up the personalty herself and leave nothing to the charity when done)14) @ appeal – considering intention in will…widow has successive life interest in the

personalty, during which time the charity (ultimate owner) has a vested interest. Widow only has usufructuary interest in the personalty, which means she can enjoy revenue from the principal, but can’t encroach upon it. She has a fiduciary duty to preserve it for the charity.

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Marital Unity: Common Law and Equity

4 Stages of Marital Unity Legal Development

1. COMMON LAW When a woman and man married marital unity occurred = the estates joined in

ownership for the duration of the marriage, then after the marriage her part of the estate went back to hero CLEAR SLOT IN TIME - marital property existed during this time

Dower = When the husband died, she got 1/3 of husband's portion of estate Curtesy = When wife died 100% of wife's portion of estate – subject to some conditions

2. EQUITABLE POSITION – substantially increased married woman’s legal capacity Trusts could be set up with trustees for women with specific requirements that the

property stick with the wife alone Allowed property to be settled in favour of a married woman in her own right as an

individual beneficiary Really only available to the upper class

3. SERIES OF STATUTES - eg. Married Woman's Property Act Mid to late 19th century Adopted equity rules and said removed common law concept of marital property (as

created by marital unity) Let married woman hold land like unmarried women, who had same rights as men

4. MODERN STATUTES Focussed on distribution, notwithstanding who owns what - distribution > title Property is shared when marriage breakdown occurs, regardless of who actually owns the

property Children and spouses can now contest a will to argue that dispersal of property is unfair

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