Hello Reader, this time Tabir Hukum will discuss about physical boundaries and inherent rights of ownership.
WATER
Draw a sketch of a piece of property, roughly rectangular in shape, owned by O. On its southern border it faces the sea and the waves of the ocean pound on its beach. The eastern border is marked in part by a stream, flowing from adjoining land, owned by A. The stream turns and flow across O's land, emptying into the ocean. A creek where it enters O's land, the stream grows quickly and becomes a river affected by the tides as it approaches the sea. From the north a subterranean stream flows southward, its destination unknown. On the west there is a lake that forms part of the boundary with the land of B, the whole of the lake being contained within the boundaries of O's and B's property. A natural pool or pond of water lies completely within O's boundaries, and lying under the property is groundwater that supplies O's well. Consider now the issues that these various bodies of water raise for O, A, B, and the general public.
Let's begin with the ocean. While in most cases in Canada we have the right to walk on an ocean beach, we don't have the right to cross O's land to get there. So where does O's land end ?. The general rule for interpreting grants of property bounded by tidal waters is to presume that the boundary is the average high water mark. Below that line, to seaward, the foreshore (the land between the high water mark and the low water mark) and the bed of the sea belong to the Crown. The Crown may grant rights in the foreshore or even the ocean bed, but absent an express grant of the foreshore, O cannot prevent people from walking on the foreshore and O cannot erect structures there to enhance his or her access.
Consider now the stream that marks part of the eastern boundary of O's property. Land along a river is called riparian land, and the owner of land along a river is a riparian owner. Grants of land along a river may describe the physical boundaries of the parcel being granted as extending to the water's edge, and following the bank of the river in its various courses. At common law, the interpretation of these words depended on whether the river was tidal or non-tidal. With a tidal river, as with the ocean, a grant to the water's edge granted ownership rights only to the high water mark, in the absence of words in the grant showing a different intention. With non-tidal rivers, the same words were interpreted as granting ownership rights to the bank of the river and also the river bed. Where a single owner owned both banks, that owner would own all of the river bed. Where the river flowed between properties of two different owners, each would own the river bank on his or her side, and the river bed to the middle thread of the river - ad medium filum aquae, in the Latin phrase often cited in the cases. The middle thread of the river is an imaginary line drawn down the main channel of the river.
In England, where courts developed these presumptions about the meaning of words used to describe land boundaries, tidal rivers were generally navigable and non-tidal rivers were generally non-navigable, at least by commercial craft. In North America, the situation is quite different. The Europeans who first explored what we now call Canada used the river systems as their highways into the interior of the continent. These great rivers, although tidal at their mouths (think of the famous remain navigable long past the point at which they are no longer tidally-influenced. In Canadian Law, then, the tidal or non-tidal distinction gave way to a navigable or non-navigable distinction.
The distinction between navigable and non-navigable is not a precise one; courts have held that a river is non-navigable even if it is navigable by small recreational craft, or is suitable for transporting rafts of timber. As well, courts have held that rivers are navigable even if navigation is interrupted at discrete points by rapids or water falls. Generally, Crown grants of land along a non-navigable river are interpreted to grant ownership of the river bed to the middle thread of the river, unless the words of the grant or relevant legislation preclude that interpretation. However, very few riparian owners today have ownership rights in the beds of rivers flowing along or through their lands, as most jurisdictions have enacted legislation providing that the Crown owns river beds and also a buffer strip of land between the water's edge and lands granted to a private owner.
Ownership of part of the river bed gives the owner the exclusive right to fish in the waters flowing over that part. This right, called a profit of piscary, is a real property right of the kind known as a profit a prendre. Although the profit of piscary derives from ownership of the river bed, it can be severed from that ownership and transferred to someone else.
Regardless who owns the river bed, riparian owners do not own the water in the river flowing along or through their property, although they own riparian rights to use the water, sometimes referred to as usufructuary rights. In our example, both O and A are riparian owners of the stream that separates their properties. A's land is upstream of O's, meaning closer to the source of the stream, and so A is an upper riparian owner with respect to O, and a lower riparian owner with respect to the owners further upstream. As an upper riparian owner, A has access to the water before O does. What happens if A takes so much of the water that there is not enough left for O, or if A pollutes the water so that it is no longer of any use to O ?.
At common law, the definition of riparian rights contained some inherent limits that minimized the likelihood of this kind of conflict. Riparian owners could take as much water as they needed from rivers flowing along or through their property, even if that use interfered with the water available downstream, but only if their use of the water was limited to ordinary domestic purposes connected with the riparian land. By interpreting ordinary domestic purposes quite restrictively, for example, as water for a few cows but not for a commercial herd, judges balanced the needs of upper and lower riparian owners. Riparian owners could take water for extraordinary uses beyond the everyday needs of an ordinary household only if such use did not interfere with rights of lower riparian owners to have the river flow past undiminished in quality and quantity.
Judges developed the law of riparian rights in England at a time when water use was limited by the technology for extracting it, and clean water use was relatively abundant. At common law, the rights of lower riparian owners limit the rights of upstream owners to divert water from the river, to dam the river, or to use it to carry away agricultural or industrial wastes. Governments that consider these activities as necessary for economic development cleared the way for them by legislation expropriating riparian rights. More recently, to re-introduce some of the limits inherent in the riparian rights regime, some governments have enacted legislation providing for environmental protection and encouraging or compelling sustainable development.
What about the subterranean stream in our example ?. If it flows in a defined channel, the owners of the land through which it flows have the same rights to its use as they would with a similar stream on the surface. But if the underground water is not in a definite channel - sometimes a difficult factual determination - then the water is "percolating water", and different rules apply. Groundwater is also percolating water. Some analogy has been made between percolating water and wild animals or fish which cannot be owned until captured. Certainly at common law, no one owns percolating water in an underground reservoir. But if O can extract the percolating water and bring it to the surface, O can claim ownership rights in the water, even if it is established that the water actually comes via subterranean channels from a reservoir under adjoining land.
With the growth of relatively high density communities in unserviced areas, with wells for each lot, conflicts over of percolating water are not satisfactorily resolved by the common law's "first capture" approach. In many jurisdiction, particularly where water shortages are common, legislation sets limits on how much groundwater an individual can extract. In the absence of legislation, excessive use may be curbed by tort actions in nuisance or negligence if the use has caused foreseeable harm to a neighbour.
Now consider the two remaining bodies of water on O's property - the take lying on the boundary and the pond lying completely within O's boundaries. Both will be treated for most purposes as a flowing stream in that both O and A have rights of riparian owners to use the water in an equal and reasonable fashion and neither will own the water. With the pond that entirely on O's land, O's use of the water will not be limited by the rights of lower riparian owners, since there is no stream draining onto another's land. It is unlikely, however, that either A or O can claim ownership of the bed of the lake. In most jurisdiction or an express provision in the grant, a grant of property on a freshwater lake that describes the property as extending to the bank or shore or to the water's edge is interpreted as meaning that the property extends to the low water mark. If the lake or pond has been created (artificially) by the construction of a dam, the middle thread of the original stream remains the boundary, unless legislation or the wording of a deed provides otherwise.
There is another category of water besides riparian or percolating : surface water draining naturally across the land, but not in a defined channel and not all of the time. The older cases talk of water that squanders itself across the land. Just as with the distinction between riparian and percolating water, the distinction between riparian and surface water is a question of fact, to be determined in each case on the evidence. With surface water, the issue is more likely to be who has responsibility for the damage it causes rather than who can use it. The basic common law approach is to treat the water as a common enemy, with individual property owners free to take steps to protect their land from flooding. Owners may retain surface water on their property if they wish, as their neighbours lower down have no right to receive it. Owners may also put up barriers to keep the water from coming in their own property, but they cannot create artificial channels to direct it onto their neighbours' property. Whether erecting a barrier also creates an artificial channel may be a difficult factual determination. In contrast to the common law, the civil law doctrine in Quebec (adopted by Alberta on this point) requires properties that stand in the natural flow of surface water to allow the water to follow its natural flow - one can neither hoard the water not put up barriers against it. More generally, legislation often assigns responsibility for flood control to the entity that controls the relevant water systems.
THE SUBSURFACE
In mediaeval times, when many people thought of the world as flat, the physical limits of property ownership were expressed in a Latin maxim - cuius est solum eius est usque ad caelum at ad inferos - roughly translated as "who owns the fee in the surface owns not only that surface but up to Heaven and down to Hell". Generally, when we think of the physical dimensions of a fee simple, we think of two dimension - length and width. But sketch a cutaway section of the earth so that you see the surface of O's land as well as the subsurface. Now imagine two fee simple estates, one on top of the other, one in the surface and the other in the subsurface.
At common law, it is possible for O to grant a fee simple in the subsurface so that surface and subsurface are owned separately. Generally, if O owns the fee simple absolute in Blackacre, O owns the subsurface unless the chain of title shows that it was reserved or conveyed separately at an earlier date. But holding title to the subsurface doesn't mean that O owns everything that lies therein, for at common law the Crown is entitled to precious metals and to treasure trove - gold and silver that has been refined and then hidden on the land by persons unknown. In addition, most crown grants reserved ownership of minerals, coal, and petroleum hydrocarbons for the Crown. In the early years of settlement in the prairie west, the federal government's land grants to the Canadian Pacific Railway, as well as to early settlers, did not reserve mineral, coal, or petroleum hydrocarbons for the Crown. In western Canada, then, there is a mixture of Crown-owned and privately-owned mineral rights. The latter are called freehold mineral rights, and can be conveyed in the same manner as a fee simple.
Whatever one owns, the rights of ownership are never absolute but are limited by the owner's obligations to others. To your cutaway sketch of O's property, add on each side the property of O's neighbours, A and B. And give the subsurface under O's land in fee to C. Where O's land is in its natural state, that is, unencumbered by buildings or structures, then O has a right at common law to receive lateral support from the lands of A and B. It follows therefore that if A excavates for a foundation with resulting subsidence on O's lot, A will be liable to O for the cost of restoring the surface. To put this in a slightly different way, landowners have an absolute right to have their land supported laterally by land of their neighbours. Note that the words used are "absolute right". There is no question of how careful A or B might have been or how unpredictable the subsidence was : non-negligence is not a defence. Note, too, that the right to support may impose a limit on the right to extract percolating water, discussed above. If you take so much water that you empty an underground reservoir that was supporting your neighbour's surface, you may be liable for any resulting damage.
Now place a building on O's land, while A's and B's are unimproved. The right to support that is inherent in estate ownership applies to the land only, not to buildings on the land. It is possible to secure a right to support of a building through as easement. But assume that O has no such right here. And suppose that B excavates and O's land subsides, damaging not only the land but the building as well. Is B absolutely liable for all of this damage, part of it, or none of it ?. Since B has no obligation to support O's building, we have to know whether the land would have subsided even if O's building was not there : was the subsidence caused only by B's removal of support or was the weight of the building a contributing cause ?. Since this is a counterfactual question - what if the building had not been there ? - the answer can be expressed only in probabilities. And it is here that evidence of non-negligence may be relevant. O will say "my building stood for 25 years without a problem, then B excavated and the land subsided. Res ipsa loquitur". O may also bring in expert witnesses who will criticize what B did and suggest what B should have done. That will shift the evidentiary burden to B, who will bring in expert witnesses to testify as to B's reasonable precautions to shore up and back fill property, so that the subsidence must have been from the weight of the building, not the excavation. Then the judge must assess whose explanation of the subsidence is more persuasive, on the balance of probabilities. If it is O's, B will be liable for the damage to the land and to the building as well, since damage to the building is consequential to the damage to the land and therefore recoverable.
Look again at your sketch. O has one other neighbour besides A and B - C - who owns the fee simple in the subsurface below O's property. C must provide O with subjacent support. Suppose that C, perhaps in mining coal, has removed so much of the subsurface that the surface has subsided. Where there has been subsidence following subsurface mining, the surface owner may rely on a presumption that the mining activities caused the subsidence, regardless of the presence of buildings on the property. The evidentiary onus then shifts to C to rebut the presumption. C may do so by introducing evidence that the mining activity was carried out in such a way as to maintain support for the surface, or by introducing evidence that O's activities on the surface would have caused the subsidence, even without the mining activity.
Just as O may bargain with neighbouring landowners for the right to support of buildings, so C may acquire from O a release of O's inherent right to subjacent support. In mining areas, where mining companies have acquired the full fee simple and then sold the surface, the deeds may contain a clause reserving to the mining company the right to cause subsidence without liability.
AIRSPACE
Although humans throughout history have been fascinated by the airspace above them, it is only in the last couple of centuries that they have been able to make much use of it. In modern times, conflicting use requirements have led to both judicial and legislative repudiations of the extent of ownership suggested in the Latin maxim cuius est solum eius est usque ad caelum et ad inferos. Property owners cannot claim damages for trespass from aircraft flying through "their" column of airspace at 30,000 or 40,000 feet. But they can claim damages from the owners of overhanging buildings, fences or even trees, unless their owners have obtained an easement giving them the right to use their neighbour's airspace.
Where, in between the high-altitude plane and the overhanging apple trees, do O's rights disappear ?. It is physically impossible to draw a line at one thousand feet or any other such "reasonable" distance so we resort to what is reasonable in the circumstances. O has the rights necessary to make reasonable use of the surface property and the airspace that can be controlled from that property. The owner of a fee simple can convey a fee simple in the airspace above the surface, just as he or she can convey a fee simple in the subsurface. Some jurisdictions have legislation providing standards for surveyors and conveyancers to use in writing descriptions for deeds to empty air space, or for use in planning, developing and selling condominium units in high-rise towers. Some municipalities use height limitations to restrict building density; these municipalities may permit the owner of a low-rise building to sell the unused development rights to empty airspace above the building to the owner of a nearby parcel of land. By combining the development rights transferred from the first parcel with the development right for the second parcel, the owner of the second parcel is able to build something higher than otherwise permitted.
Owners of property do not have the right to prevent others from erecting structures that will block their light or interfere with their view, unless they have acquired the right to the light or view by way of easement. In some jurisdictions, zoning bylaws may limit construction that will interfere with a view from a public park or civic landmark, but that is of estate ownership or the physical extent of property rights, remember to check for legislation that adds to or amends the common law.
Umpteen posts of tabir hukum about physical boundaries and inherent rights of ownership, hopefully the writing of tabir hukum about physical boundaries and inherent rights of ownership can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Ownership, Title and The Limits of Ownership - Physical Boundaries and Inherent Rights of Ownership |
