Cuius est solum, ejus est usque ad caelum et ad inferos.

To whomever owns the land, shall own the earth to its center and up to the heavens.

This Latin maxim was the precursor to modern law of the air and of the earth below it.

But case law has greatly tempered the extent to which such a right can now be enforced. Mining, electricity distribution, sewer systems disposal and air travel have all conspired to erode this principle such that it is now little more than legal folklore.

Air Space

Air space, for example, has been "brought back down to Earth", and is now limited to that height which can be reasonably used or occupied.

A good illustration of this is the Bernstein of Leigh v. Skyview case where an action in trespass was filed against an airplane flying above one's land. It was held that a land owner had rights only so far as practical and necessary to protect their structures or to use their land.

In another case, Atlantic Aviation v. Nova Scotia Light & Power, it was a flying company that complained of the construction of transmission towers on adjacent land, which interfered bothered with landings and take-offs. The court said land owners had a right to "erect structures on his land in the exercise of his use and enjoyment of his land, even if the obstructions interfered with the free passage of aircraft taking off and landing on an adjoining airfield. The erection and use of the towers and wires by the defendant was a lawful, reasonable and necessary use of the defendant's air space."

This is an evolving area of the law and alive and kicking in the court rooms of Canada. One novel case was disclosed in June 2007 when the Manitoba Grand Rapids First Nations band stated publicly that they wanted to collect from Manitoba Telecom.

According to an article in the June 14, 2007 edition of the Epoch Times, the native band's stated position was:

"When it comes to using our airspace, it's like using our water. They have a cell phone tower standing within the vicinity of our community. So we are paying them to use our airspace, but no revenue is coming back to our community."

... a suivre...

Water Rights

"Title to non-tidal and non-navigable rivers extends to the middle of the river" (a Latin legal principle).

Water rights refer either to shoreline, riparian rights or to percolating water.

Shoreline land title depends on whether the water is navigable or tidal. If the waterway is not tidal or navigable, such as a narrow river, the common law rule is that title extends to the middle of the river. If the water is navigable or tidal, property extends only to the high water mark.

The law becomes confused where a waterway is tidal but non-navigable (a narrow gorge) or navigable but not tidal (a wide river). What the common law has not settled, legislation in many provinces has making it clear that navigable waterways belong to the Crown, whether they are tidal or not.

Riparian rights are rights of people who own land that runs into a river bank (a "riparian owner" is a person who owns land that runs into a river). While not an ownership right, riparian rights include the right of access to, and use of the water for domestic purposes (bathing, cleaning and navigating). The extent of these rights varies from country to country and may include the right to build a wharf outward to a navigable depth or to take emergency measures to prevent flooding.

Riparian rights also cover the right to enjoy the natural flow of a river and to prevent the damming by a riparian landowner at a higher elevation, or by a riparian owner at a lower elevation.

"A riparian proprietor is entitled to have the water of the stream on the banks of which his property lies, flow down as it has been accustomed to flow down to his property, subject to ordinary use of the flowing water by upper proprietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances." (John Young & Co. v. Bankier Distillery Co. 1893 Appeal Cases 691)

Land owners are entitled to draw water from rivers which run off their land if the water is being drawn for ordinary domestic purposes. Examples include drinking, washing or watering of cattle. There is no compensation for the lower riparian owner even if the supply of water is exhausted. A riparian owner can also divert the entire river for other than ordinary purposes if the water is simultaneously restored in volume and in character, such as use for irrigation or a mill. In no cases can a riparian owner extract water for purposes unrelated to the riparian land.

Again, provincial legislation exists in many provinces to affect the common law riparian rights.

Percolating water is water which seeps or filters through the ground without any definite channel and not part of the flow of any waterway. The best example is rain water. Under common law, it was once thought that a land owner had total rights to retain or to divert percolating water. A good example is Stephens v. Anglian Water Authority (1987) 3 All ER 379 in which the court clearly stated that when it comes to percolating water, "there is no duty of care (so) the defendants cannot have committed the tort of negligence." But a Canadian decision, Pugliese v. National Capital Commission restricted this by allowing action for nuisance or negligence where such diversion or restriction is done contrary to provincial legislation and causes harm to another. In the Pugliese case, the pumping out of percolating water caused structural collapse. 

Subsurface; Below the Surface

"No man but feels more of a man in the world if he have a bit of ground that he can call his own. However small it is on the surface, it is four thousand miles deep; and that is a very handsome property." Charles Warner (1871)

In Canada, it seems, there is no case law consensus on the exclusivity of a land owner to the "depths of the Earth." The only precedent around seems to be Edwards v. Sims, which was a split decision and which dealt more with equity than with subsurface rights.

One issue which appears to be law in many Canadian provinces is the reservation of mineral rights to the Crown. Under common law and the feudal system, the grant of land usually included all minerals except gold and silver which, if discovered, belonged to the Crown or land Lord. But provincial laws have changed that in certain provinces. The rights of a fee simple owner in Alberta are not extended to include mineral rights. In England, all coal and petroleum belongs to the Crown. Thus, the Crown can take advantage of its status of original grantor of the land and retained mineral rights.

It is also possible for a private land owner, who owns the mineral rights, to sever these rights and to sell them as a separate estate in fee simple (i.e. capable of being sold or conveyed by will).

This article gives a general description of real-estate law in common law Canada. The information contained in this article is of a general nature only and is not intended to cover the entire area of Canadian law relating to real-estate. In particular, legislation in certain provinces may have altered the general principles of common law discussed below. Furthermore, this information is not directed toward a particular factual situation, and does not constitute legal advice. If you have any questions of a legal nature, or of how the law applies in a particular situation, please consult a lawyer.