Chapter 6 on Landscapes | An Open Legal Coursebook

Mon, 01 Jan 0001 00:00:00 +0000

Haddad J.A. — #

The single issue in this appeal is to determine, on the particular facts which follow, whether the respondent has trespassed the air space above the appellants’ land.

The material facts are not in dispute. The respondent, an electrical utility company, constructed a power line on the municipal road allowance along the east side of the appellants’ land. The distance between the centre of the base of four power poles, each approximately 50 feet in height, to the boundary of the appellants’ land is two feet. The cross-arms conductors and attaching wires at the top of each pole (collectively called “the cross-arms”) protrude six feet into the air space above the appellants’ land.

Mon, 01 Jan 0001 00:00:00 +0000

Panelli J. — #

I. Introduction #

We granted review in this case to determine whether plaintiff has stated a cause of action against his physician and other defendants for using his cells in potentially lucrative medical research without his permission. Plaintiff alleges that his physician failed to disclose preexisting research and economic interests in the cells before obtaining consent to the medical procedures by which they were extracted. The superior court sustained all defendants’ demurrers to the third amended complaint, and the Court of Appeal reversed. We hold that the complaint states a cause of action for breach of the physician’s disclosure obligations, but not for conversion.

Mon, 01 Jan 0001 00:00:00 +0000

Excerpted from Jeremy Sheff, “Estates and Future Interests” in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., Open Source Property: A Free Casebook (2015).

According to the common law doctrine of tenure all land under the dominion of the English crown is held “mediately or immediately, of the king”—that is, the crown has “radical title” to all land under its political dominion. William the Conqueror declared that all land in England was literally the king’s property; everyone else had to settle for the privilege of holding it for him—the privilege of tenure (from the Norman French word “tenir”—to hold). Tenurial rights were intensely personal in early feudal society: the right to hold land was a privilege granted by the crown in exchange for an oath of allegiance and a promise of military service by the tenant—the oath of homage. The word homage derives from the French word homme—literally “man”—precisely because the ceremony surrounding the oath created not only the right of tenure, but a political and military relationship between “lord and man.” In exchange for the tenant’s loyal support, or fealty, the lord warranted the tenant’s right to hold a plot of land, called a fief, or fee.

Airspace Rights

Mon, 01 Jan 0001 00:00:00 +0000

As we have seen, possession plays a key role in establishing property in both things (i.e. chattels) and in the surface of land. The surface owner or possessor of land will, of course, often want to do things that extend well into the airspace above the surface. But the sky is a long way up. How high do rights of possession extend—and more importantly, how are such rights established? Are they a natural extension of surface rights, or is there more a surface owner needs to do in order to establish their rights to such airspace?

Contemporary Style

Mon, 01 Jan 0001 00:00:00 +0000

Source: Damir Spanic on Unsplash

This week we begin the last unit of the course, Unit 4.

Our final unit offers an opportunity to revisit not only some of the substantive legal concepts we’ve studied throughout the course, but also to ask the question: How can we make sense of our current moment in common law thought? Is there a “contemporary” legal style, and if so what are its features?

Covenants Running in Equity

Mon, 01 Jan 0001 00:00:00 +0000

De Facto Expropriation

Mon, 01 Jan 0001 00:00:00 +0000

Constructive Expropriation in Canadian Law #

The Path of Law and Mahon are both American sources but they—like others we have seen in the course—exerted a significant influence over the thinking of Canadian jurists during the twentieth century. The American law loomed large in this area because of its especially strong protections for private property against uncompensated takings.

Nevertheless, other than a small handful of cases prior to the 1990s, the domestic jurisprudence around de facto expropriation remained all but ignored by Canadian judges. It was not until the Nova Scotia Court of Appeal’s decision in Mariner Real Estate Ltd. that anything like a recognizable legal test for de facto expropriation began to emerge.

First Possession and Wild Animals

Mon, 01 Jan 0001 00:00:00 +0000

Classical First Possession: Locke and Wild Animals #

Locke’s argument for possession (by means of one’s labour) as the basis for establishing property rights in “unowned” things and land has had a lasting influence on common law property. More important still, the way in which Locke justified his principle of first possession laid much of the groundwork for the style of classical legal thought that would come to dominate in the nineteenth century.

Land Title and Possession in African Nova Scotian Communities

Mon, 01 Jan 0001 00:00:00 +0000

General Introduction #

Excerpted from Plan Showing LTCA Land Title Clarification Areas in Nova Scotia

This week, we continue to build our understanding of the relationship between possession and title that is so foundational to common law property. Our overarching question in Week 6 is as follows:

Why is title in land–as distinguished from possession of land–important? What are the justifications and consequences of the move from possession to title as part of the basic structure of a liberal market economy?

We start by taking up this question in a particular place and context: recent movements to “clarify” land titles in African Nova Scotian communities as a means to address economic disadvantage and an unequal distribution of land as a consequence of discriminatory land policies in the province. These movements have placed heavy emphasis on the regularization and formalization of land titles for individuals and families who have long been in possession of land, and can help us to understand–and develop a critical perspective on–the social and economic role of legal title.

Land Title versus Possession

Mon, 01 Jan 0001 00:00:00 +0000

Edited from Plan Showing LTCA Land Title Clarification Areas

The act of physical control—as a crucial element of legal possession—is afforded special priority by the common law. In the case of “unowned” things, showing physical control (plus an intention to control) amounts not only to legal possession for a period of time but also to absolute ownership—at least, if the animal can no longer “escape”. Exactly how one can show sufficient physical control is, as we saw, often difficult to define and heavily dependent on the circumstances.

Land, Property and Colonialism in this Course

Mon, 01 Jan 0001 00:00:00 +0000

Throughout the year we will examine several features of Canada’s liberal market economy in order to address our central question in the course. One of those features is the economy’s foundation in the colonial dispossession of Indigenous peoples through the institution of property and we will have much more to discuss on this topic this term and next. But colonialism is not only a feature or characteristic of the Canadian economy–it also an ongoing reality that shapes how we learn about law and property, including the frameworks, theories and perspectives we use to make sense of legal rules and disputes. Colonialism shapes the interpretation and application of law, as well as the questions we tend to ask about these processes.

Liberalism

Mon, 01 Jan 0001 00:00:00 +0000

As both a framework for and political tradition in Western legal thought, “liberalism” is core to the logic of Anglo-Canadian law and related legal orders in a globalized world.¹ As Ian McKay argues:²

[T]he category ‘Canada’ should … denote a historically specific project of rule, rather than either an essence we must defend or an empty homogeneous space we must possess. Canada-as-project can be analyzed through the study of the implantation and expansion over a heterogeneous terrain of a certain politico-economic logic–to wit, liberalism.

Property Law: Making the Market

Mon, 01 Jan 0001 00:00:00 +0000

Throughout the course, we will study several controversies, concepts and legal doctrines that normally make up the field of property law in most Canadian law schools. As in your other courses, you will gain a solid understanding of legal rules “on the books” that address a range of issues (local, national and global) and you will see how those rules have changed and been adapted over time. But we will also address legal rules with a specific goal in mind–one that goes beyond a basic proficiency in the common law or legislation. Our goal is to understand and develop a thoughtful answer to the following question:

Styles of Argument

Mon, 01 Jan 0001 00:00:00 +0000

What makes a “good” or “persuasive” or “correct” legal argument? An answer to the question is often fundamental to resolving a dispute in court or convincing a political decision-maker to make some kind of legal or policy change.

One way to answer this question is to focus on “style”.¹ This idea of style will seem pretty wishy-washy to some people at first. Aren’t legal arguments clear, logical, and rational? Knowing enough about the law and the facts, shouldn’t we always be able to determine the correct legal answer to a problem?

The Path of Law

Mon, 01 Jan 0001 00:00:00 +0000

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

Three Assumptions About Law and the Economy

Mon, 01 Jan 0001 00:00:00 +0000

Three assumptions about law and the economy #

The three key assumptions sketched below are pervasive in court cases, in public policy forums, and in the media when people are debating and discussing the relationship between law and the economy. They run so deep that we often fail to notice them. The problem with these three assumptions–and a failure to treat them as such–is that they tend to view “law” and the “economy” as separate and distinct phenomena, instead of two aspects of social life that constitute one another. These assumptions draw our attention away from the central idea that economies and economic exchange cannot exist without some underlying legal rules or norms. What forms of economic exchange exist–and who benefits from those exchanges–are therefore determined in large part by those who shape the law and the choices they make.