Possession on Property: (Re)Making Canada | An Open Legal Coursebook

John Locke, Second Treatise on Government (1690)

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

Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says, Psal. cxv. 16. has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content myself to answer, that if it be difficult to make out property, upon a supposition that God gave the world to Adam, and his posterity in common, it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam, and his heirs in succession, exclusive of all the rest of his posterity. But I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.

Pierson v Post

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

Tompkins, J. (majority) – #

This cause comes before us on a return to a certiorari directed to one of the justices of Queens county.

The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away?

Clift v Kane

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

Hoyles C.J. — #

This was an action in trover brought to recover the value of a thousand seals, alleged by the plaintiffs to have been wrongfully taken from the crew of their vessel, the Brothers, at the ice in the spring of 1869, by the defendants, Kane and his crew, and subsequently sold by Kane to the other defendants, Baine, Johnston & Co.

The facts of this case, so far as it is necessary to refer to them for the determination of the questions now under consideration, are as follows:

Popov v Hayashi

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

McCarthy J. — #

Facts #

In 1927, Babe Ruth hit sixty home runs. That record stood for thirty four years until Roger Maris broke it in 1961 with sixty one home runs. Mark McGwire hit seventy in 1998. On October 7, 2001, at PacBell Park in San Francisco, Barry Bonds hit number seventy three. That accomplishment set a record which, in all probability, will remain unbroken for years into the future.

Charter of the Hudson Bay Company (1670)

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

We have given, granted and confirmed, and by these Presents, for Us, Our Heirs and Successors, do give, grant, and confirm, unto the said Governor and Company, and their Successors, the sole Trade and Commerce of all those Seas, Straights, Bays, Rivers, Lakes, Creeks, and Sounds, in whatsoever Latitude they shall be, that lie within the Entrance of the Streights commonly called Hudson’s Streights, together with all the Lands and Territories upon the Countries, Coasts and Confines of the Seas, Bays, Lakes Rivers, Creeks, and Sounds aforesaid, that are not already actually possessed by or granted to any of our Subjects or possessed by the Subjects of any other Christian Prince or State, with the Fishing of all Sorts of Fish, Whales, Sturgeons, and all other Royal Fishes, in the Seas, Bays, Inlets, and Rivers within the Premisses, and the Fish therein taken, together with the Royalty of the Sea upon the Coasts within the Limits aforesaid, and all Mines Royal, as well discovered as not discovered, of Gold, Silver, Gems, and precious Stones, to be found or discovered within the Territories, Limits, and Places aforesaid, and that the said Land be from henceforth reckoned and reputed as one of our Plantations or Colonies in America, called Rupert’s Land.

Armorie v Delamirie

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

Pratt, C.J. – #

The plaintiff, being a chimney sweeper’s boy, found a jewel, and carried it to the defendant’s shop, (who was a goldsmith) to know what it was, and delivered it into the hands of an apprentice, who, under pretense of weighing it, took out the stones; and, calling to the master to let him know if it came to three half-pence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled:

The Relative Nature of Possession and Title

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

Adapted from Jeremy Sheff, “Finders Keepers, Losers Weepers?” in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., Open Source Property: A Free Casebook, https://opensourceproperty.org (2015).

One way of describing the holding of Armory is that it sets out the rights of finders. Suppose that the “rightful owner” of the jewel, Lord Hobnob, had shown up in the shop while the chimney-sweep and the apprentice were arguing over the jewel. Who would have been entitled to the jewel? If the chimney-sweep is not the “rightful owner,” why does he still win the case? What kind of interest does he have in the jewel?

Keron v Cashman

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

Emery, V. C. – #

The bill in this case is filed by the stakeholder or custodian of lost money, and the sum in his hands, amounting to nearly $800, has been paid into court, to abide the decision of the controversy between the defendants as to their respective rights in the fund. The money was found under the following circumstances: A party of boys, five in number, were going on their way home along a railroad track in the city of Elizabeth. The youngest boy, Crawford, about nine years of age, being ahead of the others on the railroad embankment, picked up an old stocking, tied at both ends, and in which something was tied up. Crawford says that, after picking up the stocking, he began swinging it, and that Cashman, the oldest of the boys, snatched it away from him. Cashman and the other three boys swear that Crawford threw the stocking down the embankment, and that then Cashman got it, and commenced beating the boys with it. The stocking passed from one boy to another in this play, and finally it broke open while Cashman was beating another boy with it, and it was then first found or suspected that the stocking contained money. All of the boys then examined the contents of the stocking together. The stocking contained $775 in bills, besides some rags, cloths, ribbons, etc. A division of the money among the boys was proposed, and partially carried out; but, being interrupted, the boys went home, and all of the money was on that evening given to the father of two of the boys, named Fox, who, on the next day, put it into the possession of the complainant, the chief of police of Elizabeth, to discover the owner. This effort, though made with all diligence, has failed; and Crawford having demanded the whole sum, while the other boys demanded an equal division of the money, it has been paid into court on this bill of interpleader, upon which decree of interpleader has been made. The several claims are set up by the answers to the bill, Crawford claiming all, and the other boys claiming an equal division.

Abandonment

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

Just as it is possible to acquire property by first possession, property rights can also be “given up” through a processes called abandonment.

Abandonment occurs when property–once established by possession or other legal means–is voluntarily given up by the owner. As the quoted passage above notes, abandonment requires the owner to demonstrate an express intention to permanently abandon their property rights: they must have “the intention of terminating ownership, possession and control.”¹

Asher v Whitlock

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

At the trial before Cockburn, C.J., at the last Bedfordshire Spring Assizes, the following facts appeared in evidence. About Michaelmas, in the year 1842, Thomas Williamson inclosed from the waste of a manor a piece of land by the side of the highway; and in 1850, he inclosed more land adjoining, and built a cottage; the whole being the land as described and claimed in the writ. He occupied the whole till his death in 1860. By his will he devised the whole property, describing it as “a cottage and garden, in Keysoe Row, in which I now dwell,” to his wife Lucy Williamson, for and during so much only of her natural life as she might remain his widow and unmarried; and from and after her decease, or second marriage, whichever event might first happen, to his only child Mary Ann Williamson, in fee. After the death of Thomas Williamson, his widow remained in possession with the daughter, and in April, 1861, married the defendant; and from that time they all three resided on the property till the death of the daughter, aged eighteen years, in February, 1863. On her death, the defendant and his wife, the widow of the testator, continued to reside on the premises; the widow died in May, 1863, and the defendant still continued to occupy.

Keeble v Hickeringill

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

Action upon the case. Plaintiff declares that he was, 8th November in the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, [where he maintained] a decoy pond, to which divers wildfowl used to resort and come: and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines and other engines for the decoying and taking of the wildfowl, and enjoyed the benefit in taking them: the defendant, knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wildfowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wildfowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wildfowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wildfowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and 20l. damages.

Ratione Soli

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

From opensourceproperty.org

Lord Holt, who decided Keeble, is also a key—if perhaps slightly confusing—expositor of the related and peculiarly English doctrine of ratione soli (Latin for “by reason of the soil”), also referred to in Pierson. Ratione soli is the principle that the right to take possession of wild animals belongs to the owner of the land where the animal may be found; thus title to any animals captured or killed on owned land automatically vests in the landowner. The English rule is in stark opposition to the civil (i.e., Roman) law rule, reflected in the Institutes of Justinian, which is that the captor of a wild animal acquires property rights in the animal wherever captured, though he may be liable in trespass to the owner of the real property on which the animal was pursued or taken. This distinction affects not only the right to possession of the animal itself, but also the measure of damages, because the damages from the trespass may be less than the value of the animal.

Wildlife Act

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

4 (1) Subject to subsection (2), the property in all wildlife situate within the Province, while in a state of nature, is hereby declared to be vested in Her Majesty in right of the Province and no person shall acquire any right or property therein otherwise than in accordance with this Act and the regulations.

Harrison v Carswell

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

Dickson J. — #

The respondent, Sophie Carswell, was charged under The Petty Trespasses Act, R.S.M. 1970, c. P50, with four offences (one on each of four days) of unlawfully trespassing upon the premises of the Fairview Corporation Limited, trading under the firm name and style of Polo Park Shopping Centre, located in the City of Winnipeg, after having been requested by the owner not to enter on or come upon the premises. The appellant, Peter Harrison, manager of Polo Park Shopping Centre, swore the informations. The charges were dismissed by the Provincial Judge but on a trial de novo in the County Court Mrs. Carswell was convicted and fined $10 on each of the charges. The convictions were set aside by the Manitoba Court of Appeal [1974] 4 W.W.R. 394 (Freedman C.J.M. and Matas J.A., with Guy J.A. dissenting) and the present appeal followed by leave of this Court.

Protection of Property Act

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

2 In this Act,

[…]

(b) “occupier” includes

(i) a person who is in possession of premises, or

(ii) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

[…]

(d) “premises” means lands and structures, or either of them, and includes trailers and portable structures designed or used for residence, business or shelter.

The Unusual Doctrine of Adverse Possession

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

Adverse possession is an unusual common law doctrine. We have already emphasized the point that legal possession and legal title are distinctive concepts. In general, “mere possession” does not disturb the legal title of the landowner, but the doctrine of adverse possession creates a dramatic exception to this rule. Under the doctrine, when a person has been in possession of land for longer than a period established by statute (called the limitation period), they may become the title holder—and the original title holder may end up with nothing. The ultimate effect of adverse possession is to take title out of the hands of the original owner and to put that title into the hands of the person in possession.

Piper v Stevenson

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

Clute J. — #

The plaintiff claims as owner and occupier of lots 28 and 29, block “A,” Marmot street, North Toronto, registered plan No. 722, and asks an injunction restraining the defendant from trespass and for damages for former trespass and forcible entry. The defendant denies that the plaintiff is the owner of the lots in question, and says that he purchased the same from the registered owner thereof, and thereupon entered into possession of the same and built a fence thereon and planted a crop, which are the trespasses complained of.

Keefer v Arillotta

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

Wilson, J.A. – #

This is an appeal from an order of His Honour Judge Nicholls holding that the respondents had acquired a possessory title to a portion of the appellants’ land subject to an easement remaining in the appellants.

The facts are more fully set out in the reasons for judgment of the learned trial Judge but the more significant ones for purposes of this appeal may be summarized under the following headings:

Kosicki v Toronto (City) [OCA]

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

Sossin J.A. – #

Overview #

Can private landowners gain title over municipal parkland through adverse possession? This is the central question raised on this appeal. The application judge answered this question by finding that municipal parkland is immune to adverse possession. While I would not accept such an immunity arises at common law, I conclude the application judge was correct in finding that the municipal parkland at issue in this case was not available for adverse possession. For the reasons that follow, I would dismiss the appeal.

Kosicki v Toronto (City) [SCC]

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

O’Bonsawin J.(Wagner C.J. and Côté, Rowe and Moreau JJ. concurring) – #

I. Overview #

The issue in this appeal is whether the appellants, Pawel Kosicki and Megan Munro, can succeed in their claim for possessory title under the Real Property Limitations Act, R.S.O. 1990, c. L.15 ("RPLA"). Since 2017, the appellants have jointly owned a residential property in Toronto. Several years after purchasing the property, they learned that the respondent, the City of Toronto (“City”), is the title holder of a portion of their backyard, which is enclosed by a chain link fence.