Chapter 1: Property as rights, not thing

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Greg Koenderman – Common Law Property – Prof. Piper - 2010

Chapter 1: Property as rights, not things. 1

Introduction - Property is the set of rules that govern the relations among people; 2 1

C. B. Macpherson, The meaning of Property (1978) p. 4: Property is rights in things or to things – Straw Man versions of other property; Left Wing; property is a right not a thing 2

Bradley Bryan, Property as Ontology (2000) p.13– ABORIGINAL; IMPORTANCE OF RELATIONSHIPS 3

Walter v. Attorney General of Alberta, 1969, SCC, p15; COMMUNITY V. PRIVATE PROPERTY 4

Thomas W. Merrill, Property and the Right to Exclude, p. 20. RIGHT TO EXCLUDE IS THE NECESSARY AND SUFFICIENT condition to identify the existance property. RIGHT WING; CONTRAST WITH MACPHERSON 4

Harrison v Carswell, 1975, SCC, p. 30. The owner has the right to exclude others. 4

Chapter 2: Which Rights in Which Things? 6

Theories of Property Why do we get certain Right? 6

John Locke, Quoted in: Property mainstream and critical positions. (1978) p. 45 – Justification of private property. Common property + Labour = Private Property. 6

James Tully, Rediscovering America, in Locke in Context. (1993) p. 46 – Indian forms of Property disregarded in Locke’s concepts. 6

M.J. Radin, property and personhood. (1982) p. 50 – What is a Person? 7

Cohen, Property and Sovereignty. (1978) p. 55– Dominion over things is also imperium over human beings 8

M. Mauss, The Gift(Maori). (1967) p. 59 – Things have spirits/souls which pass b/w giver and receiver 8

L. Hyde, The Gift (The Girl and the Dead Man) (2007) p. 61; 8

Michael Thompson, Rubbish Theory: The creation and Destruction of Value. (1979) 64 – Value in the way that you say it, not in what you say 8

International News Service v. Associated Press, USA (1918), 80– Intangibles as Property; quasi-property rights; 9

Victoria Park v. Taylor, Aust, 1937, 98– Intangible is not property; Property rights are limited by relations with other people 11

Subjects and Objects of Property Law 12

Subjects and Objects of Property Law : The Deed of a Sale of a Slave Sold at Winder, N. S. in 1779. P109 12

K. J. Gray and P. D. Symes: “A Brief History of the Doctrine of Conjugal Unity” p. 110 – Women made objects after marriage 12

Moore v Regents of the UCLA, California, 1990; 113 – Rights in excised body tissue denied (when modified) 12

Breathing life into dead capital, The Economist, 2004, p128 – importance of property rights; possession v title 14

New frontiers: Chinese gamer sentenced to life, 132 – Value is all that is required for some to want property right. 14

Virtual theft leads to arrest, p.133-134 14

From lowly orcs to Grand Wizards of the Dark Realm, China’s online gamers are storming castles and expanding their domain. The government however, is playing too. P134 14

Chapter 3: Possession and Title at Common Law? 14

Casner & Leach, Cases and Text on Property (1984) p.135 – PURPOSE OF READING CML PROPERTY CASES 15

Pierson v. Post, 1805, p.136 (NY SC) – POSSESSION – Rights in abandoned things; killing/wounding = possession; pursuit does not equal possession 15

Clift v. Kane., Year, p.140 Nfld– Possession – rights in abandoned property; killing AND seizing =possession 15

The Tabantia, 1924, UK, p. 141 – Elements of Possession – how to possess something that is hard to possess. 15

Gimmelmann, Virtual Worlds as Comparative Law. (2004) p.144 – context and disparity of property rules 16

Popov v. Hayashi, 2002, p. 149 – POSSESSION – Balancing of competing rights 16

R. Sloot, Taking the Least of You. (2006) p.152. – Ownership of tissue before/after extraction (cf. Moore) 16

Finders 18

Armory v. Delmiri, 1722, UK; 162– Right of Finder superior to everyone except True Owner. 18

Keron v. Cashman, 1896, US; 163– Simultaneous Finders all retain an equally divisible property right; Possession requires physical control & intent. 18

Bird v. Fort Frances, 1949, 165; ON H.C.; Rules for Possession in Wrongful Taker Situation (Trespasser is finder) 19

Hanna v. Piel; 166 & 169 19

Moffatt v. Kazana., 1969, 171; UK; The duration of an Owner’s Title; forgotten property is not abandoned 19

Parker v. British Airways Board, 1982, UK CoA 175 Rights and Obligations of Finders and Rights & Obligations of Occupiers 19

Bridges v. Hawksworth (From within Parker Case) – finder inside an owned location, finders rule still holds 20

Senecal v. The Queen, QC, 1984, Fed Crt; p184; Legislation modifies common law rules on Finders 20

Adverse Possession 21

Introduction to Adverse Possession. P186 22

Ontario Limitations Act, R.S.O. 1990, c. L-15 (example of a statute of limitations dealing with possession) p.187 23

T.W. Merrill : “Property rules, liability rules, and adverse possession” 1985. P189; Justification of AP 23

Patricia Seed, “Ceremonies of Possession in Europe’s conquest of the New World, 1492-1640. Houses, Gardens and Fences. 192 - Adverse possession: The quality of Possession. 24

K. Green, “Citizens and Squatters: Under the Surfaces of Land Law”. p195; Justification of possession for title 24

Quality of possession 24

Introduction to St. Clair Beach Estates Ltd case p197 24

Re: St. Clair Beach Estates Ltd. v. McDonald, ON Gen Div, 1974. P198; No Possessory title; 3 requirements of possession 24

D. Mendes Da Costa and R. Balfour, “Property law: Cases, Text and Materials”. P203; examples of establishment and failure of AP 25

Beaudoin v. Aubin, 1981, ON HC, p. 205 Adverse Possession does not require intent; possession is certain and unequivocal 25

Lundrigans v. Prosper, NL, 1981, p. 210 Adverse possession must be exclusive, uninterrupted, open, and notorious, 26

Wood v. Leblane., SCC, 1981, p. 212 Doctrine of Colour of Title, misinformation leads to entire property 26

Ocean Harvesters v. Quianlan Brothers, SCC 1975, p. 213 Importance of Intent for adverse possession 26

Masidon Investments v. Ham, ON CA, 1984, p. 216 A trespasser’s use must be inconsistent w title holder intent for true adverse possession. 26

Teis v. Ancaster Town, ON CoA, 1997, p. 225 Mutual mistake does not require proof of inconsistent use – claimants can be inferred as having land title. 27

Gorman v. Gorman, O.A.C., 1998, p. 233 In marriage splits, animus possedendi is not established without cogent evidence of intention 27

Chapter 4: Which Rights for Whom? 29

Right to Exclude: Public/Private Uses of Property 29

Cadillac Fairview v. RWDSU,ON CoA, 1989, p.218 – Right to Exclude: Property Rights v. Labour Rights 30

Queen’s v. CUPE, 1994, p.224 – Right to Exclude: Unions excluded from picketing on/near private property; analysis to identify private property 30

Right to Exclude: State Expropriation and Regulation 30

Right to Exclude: State Expropriation and Regulation, p.230 – Constitutional Protection for Property Rights 30

B. Ziff, Taking Liberties: Protections for Private Property in Canada (2005) p.232 – Many constitutional and quasi-C protections for property in Canada 31

Manitoba Fisheries Ltd. v. Canada., SCC, 1979, 235–242 Goodwill is PROPERTY; expropriation must be compensated 32

British Columbia v. Tener, 1985, 243-247– Example of the Crown acquiring an intangible interest in a property right; Taking and getting not the same thing 33

Haddock v. Attorney General of ON, 1990, 248–s. 7 & 15 of the Charter do not provide protection for income earned from rental property 33


Canadian Pacific Railway v. Vancouver , 2006, SCC, 256–REQUIREMENT of de facto taking in the CML; limited by Statute; CML presumption of compensation inapplicable 34

Bell v. Toronto City, 1996, 261– Intra Vires By-Law / Charter Violation 35

Marianna Valverde, The Ethic of Diversity: Local Law and the Negotiation of Urban Norms. (2008) 268 – Controlled diversity of front yards. 35

Reglement sur le civisme, le respect et la propreté. P272-278 36

Notes. P279-282 37

Rights to be Included 37

London Borough of Southwark v Williams and Another, London Borough of Southwark v Anderson and Another. UKHL. 1971. P.284 (includes note of page 288). Right to Include; Right to Participate 37

Nicholas Blomley, Unsettling the City: Urban Land and the Politics of Property. P289-293 – Private property is relational and threatens collective ownership 38

Local 1330, United Steel Workers of America v United States Steel Corporation. 1980. Ohio. P294 – Private property claim by non-owners 38

Notes. P300 39

J. W. Singer, The Reliance Interest in Property. P303-315 39

Gosselin v Quebec, SCC, 2002. P316 – No property right to social assistance. 40

The courts can enforce rights to basic means of subsistence without being drawn out of their proper judicial role and into the realm of policy: 40

This is not an issue of resource allocation: it is a question about what kind of claims an individual can assert against a state 40

The role of the courts under the Charter is to adjudicate rights-based claims 40

The SCC can answer to the question whether the Charter right exists without addressing how much expenditure by the state is necessary to secure the right. 40

Chapter 5 - Tenures & Estate 41

Aboriginal Land Holdings 41

Native – Dawn Mills, Gitxsan property, ownership, and Governance. (2008) p.339 – Ownership of land is based on history 41

Delgamuukw et al v. The Queen in Right of BC, 1997, SCC 347 Attempt to reconcile pre-existing Aboriginal concepts of Property with CML concepts of Property 42

R v. Marshall & R v Bernard. SCC 2005 367 Exclusion is still key; no exclusion no right. 43

A. Neil, Classless Britain? (1996) p.321 – Last Feudal system in Europe 45

S. Morris, Stark Realities for last Bastion of Feudalism (2002) p.324 – Change is coming to Feudal Sark 45

S. Morris, Stak faces battle with 21st Century Kinghts (2008) p.327 – 45

Introduction to Tenure and Estates 45

K. & S. Gray, Elements of Land Law. (2005) p.329 – Tenure and Estates EXPLAINED 45

K. & S. Gray, Elements of Land Law. (2005) p.333 – FREEHOLD ESTATES EXPLAINED 46

Ziff, Warm Reception in a Cold Climate. (2005) p.337 – Why English Property law was received in Canada 47

The Creation of Estates: Presumptions and Words of Limitation p 376-377 47

Present and Future interests p. 378 49

Kevin and Susan Gray: Elements of Land Law, 4th ed - WASTE 50

Introduction to Conditional estates p. 380 50

Sir Robert MeGarry and Sir William Wade, Q.C. The Law of Real Property, 6th ed. P383; Defeasible v. Determinable estates 51

Re. McColgan, 1969, O.R. p. 384 – Conditional Estate; SUBSEQUENT 51

Conditions and uncertainty, p. 389 52

Sifton v Sifton, 1938, P.C. Ontario p. 390; Condition void for UNCERTAINTY; FAVOURS LIVING 52

Clayton v Ramsden, 1943, HL; 396 – Condition (Defeasance) void for UNCERTAINTY 52

Conditions and Public Policy 53

Re Noble and Wolf Ont. C.A. 1949; 401; Condition NOT VOID for PUBLIC POLICY (racism). 54

Re Canada Trust Co. and Ontario Human Rights Commission; Ont. C.A. 1990; 401 - condition VOID for PUBLIC POLICY: (Racist requirements of a charity trust) DEFITION OF “PUBLIC POLICY” 54

Re Rattray 1973 Ont. Sup; 421; Condition for for uncertainty; Socialist requirements from trust banned. 55

Restraints on Alienation 55

Laurin v. Iron Ore Company of Canada; 1977 NFLD. Sup; 427; Restraint on Alienation; Conditions that are unreasonable in price and time are void 56

Title Proof and registration 56

Jeanne L Schroeder, Chix nix bundle o stix: a feminist critique of the disaggregation of property. 1994. P437. 57

Chapter 6 - Easements 57

Characteristics of Easements 58

Re Ellenborough Park., 1956, 440– Test for Enforceable Easements 58

Positive and Negative Easements 60

Phillips v. Pears, UK CoA; 1965, 452– Limits of Negative Easements 60

Creation by Express of Implied Grant [454] 60

Wong v. Beaumont Property (BPT), UK CoA 1965, p. 460 – IMPLIED GRANT for necessity 61

Sandom v. Webb, 1951, UK CoA, p. 464 – IMPLIED Reservation denied; Common intention of parties 62

Barton v. Raine, 1980, ON CoA, p. 470 – IMPLIED Reservation; Not Necessity 62

Creation by Presumed/prescribed Grant [475] 62

User as of Right [478] (Creation of Prescribed Grant) 63

Garfinkel v Kleinberg 1955, ON CoA; 480 - User as a Right - Permission 63

Caldwell v Elia; 2000; OAC; 484; Easement through PRESCRIPTION; 64

The Scope of Easements [489] 65

Termination of Easements [490] 65

Volume 3: Dividing Title and Possession – Bailment, Leases and Licenses 66

Chapter Seven: Bailment 66

Mary Jane Mossman and William F. Flanagan “Property Law: Cases and Commentary (2000) p. 484 66

Martin v. Town N’ Country Delicatessen, 1963, MB CoA, p. 485 – Definition of Bailment & Licence 67

Heffron v. Imperial Parking Co. et al., 1974, Ont. CoA, p. 496 – Failure to return bailment = burden of proof on bailee to prove 1 – loss was not his fault, or 2 – fault excused by an exemption clause in K 68

Punch v. Savoy’s Jewellers Ltd. 1986, ON CoA, 505 – Definition of Bailment & Licence; 3rd party responsibility 68

Chapter 8 – Leasehold Estates 70

Introduction 70

Leases and Licenses 70

British American Oil and DePass, 1959, ON CoA, p. 519 – Indicators of a Lease; EXCLUSIVE POSSESSION creates Lease 71

Metro-matic v. Hulmann, 1973, ON CoA, p.523 – INTENTION TO CREATE LEASE; Looks like commercial lease, but held as lease 71

Notes p. 529 72

The Independence of Covenants [531] 72

From Property to Contract? The Law Relating to Abandonment [532] 72

Goldhar v. Universal Sections and Moundlings, 1962, ON CoA; p. 534 – Property law governs Leasehold; Surrender by Operation of Law; Steps landlord can take to protect interests. Overrules by Highway 72

Highway Properties Ltd. v. Kelley, Douglas, 1971, SCC p. 541– The Four options given to a landlord when a tenant repudiates a lease; Contract & property law 73

Landlord Remedies and Duties Following Abandonment: Development from Highway Properties 74

North Bay T.V and Audio Ltd v. Nova Electronics Ltd., 1983, ON HC; 552-555– Fourth Category & Notice not requiring contemporaneous 74

Mitigation 74

Toronto Housing Co Ltd v. Postal Promotions, 1981, p. 558– Mitigation Duty 74

Toronto Housing Co v. Postal Promotion, ON CoA; 1982, 562-563– Mitigation 75

CMN – Windmill Place v. Apeco of Canada., 1976, 565-568– Mitigation in a multi unit building; release of fungible space’ K law applies prior to occupancy 75

Chapter 9 The Use of the Term Property 76

Wendy Ann Adams: “Meaning and metaphor: Associative thinking and the unacknowledged images of ‘use’ in intellectual property”(2009) Property things p569, 76

Family Property (Marital) 76

Caratun v Caratun (1992), ON COA; 571; Dental licence is not matrimonial property 76

Woodworth v Woodworth, Mich CoA, 1982. 577; Law degree is property 76

Storey- Bishoff v Storey-Bishoff, 1994, Saskatchewan, Queen’s Bench; 579; M.ed degree not property 77

Regulatory Licences 77

Re National Trust Co and Bouckhuyt, 1987, ON CoA p 583; Tobacco quota is not personal property; absolute and unfettered licence is not property 77

CIBC v Hallahan (1990) ON CoA; 589; Bouckhuyt upheld; Milk Quota is not property 77

Re Foster (1992), (Ont. Gen. Div.), 591; Taxi licence is intangible personal; 78

Saulnier v Royal Bank, 2008, SCC p599; Fishing License is Property for bankruptcy; broad definition of property 78

Criminal Law 80

R. v. MacEwan R v. Bell (1947); 647 – Alcohol is not Property; To fall into penal prohibitions (quasi-crim) – something must be recognized as property. 80

Stewart v. The Queen (1988), SCC; 617; Information is not Property; A “chose” in CML Prop does not make it property in criminal law – no one “owns” confidentiality. 80

R. v. Roberts – Animal carcass a theft, opposite of MacEwan and Stewart, animal carcass chattle and property. 81

Defamation (misappropriation of personality) 81

Krouse v. Chrysler Canada Ltd. (1974), 626; ON CoA; Creates Tort of Misappropriation of personality or “passing off”: Only when a common trade, and a link between the ad and the harm to the claimant 82

Athans v. Canadian Adventure Camps Ltd. (1977), (ON. H.C.J.) Using someone’s personality for commercial gain = misappropriation of personality; NO wrongful appropriation of image 82

Gould Estate v. Stoddart Publishing Co. (1996); ON Gen Div; Distinction between sales v. subject = subject publicity not protected. 83

Gould Estate v. Stoddart Publishing (1998); 650; ON CoA; No misappropriation of personality; decided upon principles copyright not tort. 83

White v. Samsung (1991); 657; US; Vanna White’s indentity used, wide extension of personality rights. 84

White v. Samsung; US; 1993; 667 Dissent on White appeal on extension of IP rights. 84

Aubry v. Vice Versa; SCC - CVL; 675; CVL law application of personality rights under QC charter 84

Joseph v. Daniels (1986) (BCSC); 678; A torso only is not an identity, must have an essential element identity. 84

Bogajewicz v Sony, CVL 1995; 679; 84

REVIEW (Framing the Course): 85
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