Chapter 2

This second chapter is about governance – the legal rules and frameworks that determine how decisions are made about land.

As in the other chapters, a motivating theme is to demonstrate how property law is not just a private law subject in the conventional sense. Governance occurs through nuisance (tort) and covenant (contract), but also through exercise of the police power.

Nuisance #

  • Black v Canadian Copper Co.

  • Canada Paper Co v Brown

  • Nuisance in Property Law

    An introduction to nuisance injunctions as a function of the right to exclude

  • Shelfer v City of London Electrical Lighting Co.

  • Victoria Park Racing and Recreational Grounds Co Ltd v Taylor

Covenants #

  • Austerberry v Corporation of Oldham

  • Keppell v Bailey

    This case considers the enforceability of a covenant between the owners of an ironworks and a railway constructed to transport limestone for use in the ironwork's furnaces. The court addresses the question of whether the covenant can be enforced against subsequent owners of the ironworks.

  • Noble et al v Alley

  • Re Drummond Wren

  • Restrictive Covenants and Public Policy

    An introduction to restrictive covenants and the doctrine of public policy

  • Sources of Public Policy

    Contemporary sources of public policy.

  • Tulk v Moxhay

Police Power / Zoning #

Starting with McLaren v Caldwell

  • Annapolis Group Inc. v Halifax Regional Municipality

  • Belfast Corporation v OD Cars LTD

  • Canada-United States-Mexico Agreement, Article 14

  • Canadian Pacific Railway Co. v Vancouver (City)

  • Expropriation

    An introduction to expropriation

  • Expropriation Act

    Provincial legislation addressing the expropriation ('taking') of land.

  • Hodge v the Queen

  • House of Commons Debate (Rivers and Streams Bill, 1881)

    In the course of the legal dispute between McLaren and Caldwell, members of the governing federal Conservatives the Liberal party in opposition debated the whether or not to "disallow" the legislation at issue based on whether or not it was legitimate for the state to expropriate private land without compensation.

  • Mariner Real Estate Ltd v Nova Scotia (Attorney General)

  • McLaren v Caldwell et al

  • Metalclad Corporation v The United Mexican States

  • Pennsylvania Coal Co. v Mahon

  • Perry v Clissold

  • Riparian Rights

    An introduction to common law riparian rights, and context for their place in the 19th century lumber industry. This short piece will serve as useful background to understanding the McLaren v Caldwell saga.

  • Rivers and Streams Act

    Provincial legislation at issue in the McLaren and Caldwell saga.

Acquired rights #

  • City of Toronto v Board of Trustees of R.C. Separate Schools for City of Toronto

  • Cobalt (Town) v Coleman (Township)

  • R v Cappy

  • Saint-Romuald (City) v Olivier

Trespass? Exclusion? Access? #

  • Bundle of Sticks

    A useful metaphor for understanding common law property rights as sticks in a bundle.

  • Harrison v Carswell

  • Monsanto Canada Inc v Schmeiser

  • Patent as Exclusion

    An overview of patents and their economic justification

  • Protection of Property Act

    This statute establishes a quasi-criminal action in trespass to land and sets out the conditions under which such an action can be made out, including what counts as an "occupier" of the relevant premises.

  • Trespass to Land

    A brief history of civil and criminal causes of action in trespass to land.