Term
| Kelsen v. Imperial Tobacco |
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Definition
| If you own property, your rights in the airspace above the property go "up to the heavens". Overhanging sign is therefore trespassing. |
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Term
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Definition
| Aerial photography. Limits Kelsen. If you own property, your rights in the airspace only go up so high as necessary for ordinary use and enjoyment. |
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Term
| Hashem v. Nova Scotia Power |
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Definition
| If your neighbor has a right of way, and they build a tower on that right of way, you cannot claim nuisance, especially because it only subjectively prevents you from flying. |
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Term
| AG of Manitoba v. Campbell |
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Definition
| Metal finger was unnecessary for ordinary use and enjoyment, so neighboring airport got an order to have Campbell take it down because it was a nuisance. |
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Term
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Definition
| Can protect your airspace even if you have poor motives - low over-swinging crane trespasses. Applies Kelsen approach and ignores Bernstein "ordinary use and enjoyment" |
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Term
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Definition
| Manitoba wants to tax planes that fly over Manitoba. Manitoba doesn't own the airspace above it beyond ordinary use and enjoyment - the airspace is public. Therefore, an owner can prevent anyone else from gaining exclusive ownership to the airspace above their land (i.e. it has to remain public) |
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Term
| Woolerton v. Richard Costain |
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Definition
| Under trespass, court did grant injunction against an over-swinging crane but postponed the injunction until after construction would be finished. |
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Term
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Definition
| AB Court of Appeal made a comment in obiter that cranes are not permanent and that the temporary operation of them for the construction of a building should be actionable in nuisance not trespass. So their view is that you should have to prove damages. |
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Term
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Definition
| People walking in a cave directly below your property are trespassing. Dissent: would not have supported the claim of trespass because plaintiff could not bring the cave under his dominion and could not "use" it (had no entrance to cave) |
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Term
| Hammonds v. Central Kentucky Natural Gas |
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Definition
| It's your property only if it's under your dominion. Gas pumped underground (not into a manufactured container) is ferae naturae (like water and wild animals), therefore cannot be trespassing. |
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Term
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Definition
| When determining whether something is a fixture or a chattel, use the object and degree tests. Object test: was it attached for the sake of the land or the sake of the chattel? Degree: how attached is it? Would it be hard to remove, and cause a lot of damage? |
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Term
| LaSalle Recreations v. Canadian Camdex Investment |
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Definition
| Leading BC case on fixtures. Something is a prima facie a fixture if it is attached in any way, but the degree and object tests can refute. Subjective views of the parties irrelevant. More weight given to object test. |
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Term
| Diamond Neon v. Toronto Dominion Realty |
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Definition
| Since there was no restrictive covenant placed on the sign, it is a fixture. Dissent: the sign should speak for itself - if it is specific to the property, it should be a fixture. If it is specific to the owner, it should be a chattel. |
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Term
| L&R Canadian Enterprises v. Nuform Industries |
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Definition
| Machinery that is attached to a building for the purpose of steadying the machinery is considered a fixture. Machinery and building viewed as one unit. Furthermore, tools required for the ordinary running of the operation were deemed constructive fixtures. Items not required in the current operation were deemed chattels. |
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Term
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Definition
| Non-Lasalle/Stack approach in Ontario - considers the subjective intention of the parties in determing whether something is a fixture or a chattel. |
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Term
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Definition
| Riparian rights to use and flow of water, undiminished in quantity and quality, still apply except against someone with a Water Act license. |
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Term
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Definition
| Plaintiff not using water for domestic purposes, so he cannot be shielded by Water act, but can he claim breach of his riparian rights? No - Court assumes that all riparian rights have been eliminated. |
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Term
| Steadman v. Erickson Gold Mining |
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Definition
| In obiter, judges says that riparian rights to use and flow have been extinguished. Also states that if your use of water is lawful under s.42 of Water Act (domestic purpose) then you can bring an action in negligence or nuisance without having your case thrown out on the basis of illegality. |
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Term
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Definition
| Landowner can extract percolating water for any purpose, including wasting it. Note that this case was never really applicable in Canada (Penno, Pugliese), and definitely not since the Water Act was amended to apply to groundwater. |
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Term
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Definition
| Water Act now applies to groundwater. |
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Term
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Definition
| Land Act. From this point onwards, ownership of bed only passes if indicated in red or express provision. Doesn't affect anyone with a certificate issued prior to 1961 that has the bed indicated in a different color, or a claim that was decided by a court prior to 1961 (Rotter). |
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Term
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Definition
| For non-tidal, non-navigable watercourses, ad medium applies even if the bed not colored or the land area included, unless rebutted by: express statement or circumstances at the time of conveyance that were known by both parties and showed an intention by the seller to use the whole stream bed. |
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Term
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Definition
| Even with Torrens systems, ad medium rule applies to land bounded by non-tidal, non-navigable stream |
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Term
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Definition
| Riparian owner has no right to construct on foreshore (right of access doesn't include right to construct) |
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Term
| Welsh v. Marantette (Navigability) |
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Definition
| In order to determine navigability of a watercourse, you must look at whether it was useful for commerce (predictability) in its natural state, between terminal points that the public had access to. |
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Term
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Definition
| The right of support of land includes direct and indirect support - neighbors must not do things (i.e. excavate) that facilitate the action of wind/rain to the detriment of your land. |
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Term
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Definition
| If wind naturally blows sand off your land, your neighbor is permitted to keep it. |
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Term
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Definition
| Liability for lack of lateral support applies only to natural land and not the additional weight of buildings. However, if you remove a neighbor's vertical support, then you are liable. |
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Term
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Definition
| Basically the same as Gillies v. Bertoluzzi. You are liable for loss of vertical support if there is a building involved. But it's very difficult to be liable for the destruction of a building under lateral support. Plaintiff would have to show that the land in its natural state would have collapsed even without the weight of the building on it. |
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Term
| Welsh v. Marantette (Support) |
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Definition
| No right to lateral support for fill on land. |
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Term
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Definition
| No absolute right to support by percolating water. No absolute right to extract percolating water. When these conflict, assume that we follow the English rule - you can withdraw as much percolating water as you want, except if it's silt or brine - then your neighbor has a right of support (so they can sue in negligence, or of course nuisance). Note this is before the Water Act applies to groundwater. |
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Term
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Definition
| The time that accretion begins is relevant in determining who it belongs to. If land is growing vertically, then it belongs to whoever owns the bed. If it's growing horizontally, then it belongs to riparian owner. Policy issues such as "manurable" are irrelevant. |
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Term
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Definition
| Vertical growth of land goes to the owner of the bed. |
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Term
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Definition
| Principle of accretion also applies to land growth due to windblown sand at a land/water boundary. "Imperceptible" means you can't see a consolidation, even if you can see the sand blowing about. |
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Term
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Definition
| Upland boundary of strip owned by Crown is not a "mobile snake" unless explicitly described as such. |
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Term
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Definition
| Trusts can be used to create estate-like succession for personalty. If you give to A for A's life, then to B, A has an obligation to keep all of the items together. |
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Term
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Definition
| Wills can be used to create successive legal interests in personalty - first holder must preserve everything for the second holder. Can enjoy revenue from the goods, but cannot encroach. |
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