Governing Land Uses

Week 5

Find these slides online: https://webslides.baxterlab.ca/slides/property2025-26/05/
Category: Property 2025-26

Agenda

Recap: Week 4
Weekly Problem: GMOs
Historical Context: Extractivism and Industrialization
Remedies in Nuisance
Restrictive Covenants

Recap: Week4

Contemporary context of AT claims
Settler colonialism in the 19th century
Sovereignty, allodial title, and beneficial title
Aboriginal Title: source and content
Terra nullius

Source of AT

Royal Proclamation 1763 (Privy Council)
Unwritten common law (Strong J in dissent)
(Possession/Locke)

Content of AT

“Personal and usufructory right”
Inalienable except to the Crown (preemption)

NB: hesitancy of courts to define Aboriginal Title

Week 4 Problem

How did British and Canadian law prior to the 20th century establish the legal foundation for state-sponsored dispossession of Indigenous peoples as part of what has been described as a “cultural logic of elimination”? In what ways do the remedies being pursued by the parties in the Wolastoqey and MTI claims address this history of settler colonialism? In what ways do they not?

The Problem: GMOs

The heritage farmer is worried about “genetic drift” from GMO varieties grown on the college lands contaminating their heritage corn crop through cross-pollination. What legal claims, if any, might the farmer make against the agricultural college to prevent it from growing GMO corn on its land and what are the chances that those claims will succeed? For the purposes of this question, you may assume proof of a nuisance caused by the college.

What is a nuisance?

Unreasonable and substantial interference with another person’s reasonable use and enjoyment of their land.

How does nuisance relate to the “bundle of sticks” metaphor we started to develop last week?

Remedies in nuisance

Injunction vs damages

When are damages an appropriate remedy?
Why the move by courts away from injunctions?

Shelfer v City of London Electrical Lighting Co.

“In my opinion, it may be stated as a good working rule that (1) If the injury to the plaintiff’s legal rights is small, (2) and is one which is capable of being estimated in money, (3) and is one which can be adequately compensated by a small money payment, (4) and the case is one in which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given.”

Shelfer seems like a classic case (vibrations, noise, etc, from electrical machinery)

To date, nuisance law had played a very important role in owners’ exercise of their right to exclude others
Default remedy = injunction
But as the pace and intensity of industrialization increases, there is pressure for nuisance law to be more “flexible” in terms of how it protects property owners’ interests

Trial court in Shelfer awards damages instead of injunction.

Appeals court disagrees with this finding, but is open to the possibility of different remedies and feels compelled to set out a legal test that can guide future decisions:

If the injury to the plaintiff’s legal rights is small,
And is one which is capable of being estimated in money,
And is one which can be adequately compensated by a small money payment,
And the case is one in which it would be oppressive to the defendant to grant an injunction :—

then damages in substitution for an injunction may be given.

We are interested in the question of how this test gets applied.

Canadian Copper Co and Canadian Paper offer a kind of natural experiment to guage how this test was applied in this particular historical moment.

Because industrialization came somewhat later to Canada than it did in England, Canadian courts had the benefit of Shelfer and a growing body of caselaw to try to resolve cases in which remedy for nuisance was in issue.

Why do the judges in Canadian Copper Co. and in Canadian Paper Co. reach different conclusions on the issue of remedy?

Both cases are about industrial pollution (fumes, smoke, other emissions) in key emerging industries in Canada:

Canadian Copper: nickel mining (meteor in Sudbury; largest global source at time; used in stainless steel; batteries) — multiple test cases, predominantly by local farmers and business owners
Canadian Paper: pulp and paper mill in Quebec (processing link in Canada’s important lumber industry) — single claim by resident with summer home in the area

Decisions:

Canadian Copper: company pays damages for ongoing nuisance
Canadian Paper: company is enjoined from further emissions

We see that although Justice Middleton in Canadian Copper seems swayed by the imperative toward industrialization, the Supreme Court in Canadian Paper remains staunchly in support of traditional property rights. So can’t explain the law simply with reference to “larger political-economic trends”.

In fact, we might say that if anything, to outcome in these two cases is the opposite of what we might except in applying the Shelfer test.

ASK: why do the courts reach a different result? What distinguishes the two cases?

(1) Facts?

Maybe whether landowner was there first? Mentioned in both judgments, but not heavily relied on.
Maybe the importance of the polluting activity to the company (this would fit last criteria of Shelfer test)? i.e. ability to move the process elsewhere or develop some technological fix

(2) Judicial assumptions

Property rights given priority are dependent on which land use is framed as “natural” vs “unnatural”

Canadian Paper, Idington = plaintiff rebuilding family home as a summer residence; company for “mere commercial reasons” adopted a new process that emits fumes and pollution
Canadian Copper = mining in this region is the ’natural’ use of the land; land is bad for farming, which is dependent on the mining for its existence

Emerging tensions between “formalist” and “functionalist” approach

both judgement are straining against formalism. They want to consider consequences, but feel constrained in doing so.
Canadian Paper, “mass of irrelevant evidence” (vs Duff’s view, para 36, struggling with formalism)
Canadian Copper, clear concern with consequences for community (BUT, importantly in the sense of exercise of traditional property rights as an immediate INJURY to the mining company)
Both courts turn to “courts” vs “legislatures” argument in their judgments

What is a covenant annexed to land?

Leicester Square, around the time of Tulk v Moxhay

Servient tenement: bears the burden of the covenant

Dominant tenement: enjoys the benefit of the covenant

Restrictive Covenants as Private Planning

Industrial pollution + urbanization = land use conflicts
Modern planning/zoning regimes aren’t established until mid-20th century

Weekly Problem

What are the dominant and servient lands in this problem?

What would the heritage farmer need to show in order to convince a court that the covenant “runs with the land”?

Keppell v Bailey, [1834] EWHC Ch J77

Two reasons why Lord Chancellor Brougham refuses to enforce the covenant against the owners of the Beaufort Ironworks in this case:

Privity of contract
“All these kinds of property … are well known to the law and familiarly dealt with by its principles. But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner.”

Tulk v Moxhay (1848), 41 ER 1143 (Ch)

How does Lord Chancellor Cottenham address the concerns about covenants raised in Keppell v Bailey?

Covenants are unenforceable against subsequent owners in law, but can run with the land in equity where a purchaser has notice.
The “notice” requirements responds to worries about confusion and uncertainty. (Is this convincing?)

Austerberry v Corporation of Oldham, [1885] 29 ChD 750

Why, in light of the precedent in Tulk v Moxhay, does the court find that the covenant does not “run with the land”?

“Mere covenants to repair”: Courts of Equity will not enforce a covenant that requires the servient owner to spend money (a “positive” obligation) compared to one that is restrictive in nature. Therefore covenant does not run with servient land.
Covenant to maintain a public road on the servient land does not indicate a specific benefit to the dominant land. Therefore covenant does not run with dominant land.

Constructing a “test” for covenants running with the land

	Servient Land	Dominant Land
Notice	Purchaser must have notice of covenant (Keppell;Tulk).	?
Restrictive	Covenant must be restrictive in nature (Austerberry)	?
Benefit	?	Covenant must evidence a specific benefit to the dominant land (Austerberry)

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