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Table of Contents
Introduction:...............................................................................................................................................2
Nature of Property:.................................................................................................................................2
Yanner v Eaton, (1999) High Court of Australia.......................................................................................3
Justifications of Property:........................................................................................................................3
Moore v Regents of the University of California, 793 P (2d) 479 (Cal Sup Ct 1990).................................4
Ktunaxa Nation v British Columbia, (2017) SCC.......................................................................................6
History of Real Property Law:......................................................................................................................6
The Doctrine of Tenure:...........................................................................................................................6
The Doctrine of Estates:..........................................................................................................................7
Indian Reserves on the Prairies:..............................................................................................................8
Key Statutes Regarding Aboriginal Property Rights:................................................................................8
Formation of Alberta Property Law:......................................................................................................10
Boundaries................................................................................................................................................11
Airspace:................................................................................................................................................11
Didow v Alberta Power Ltd., 1988 ABCA 257, 1988 CarswellAlta 109................................................11
Subsurface:............................................................................................................................................12
Edwards v Sims, 24 SW 2d 619 (Ky CA 1929).....................................................................................12
The Coase Theorem:..........................................................................................................................13
“Subject to Reservations” in Subsurface Property Rights:.................................................................14
Possession:................................................................................................................................................14
Popov v Hayashi, 2002 WL (Cal SC)........................................................................................................14
Aboriginal Title:.........................................................................................................................................16
Overview:..............................................................................................................................................16
Legal History:.........................................................................................................................................16
Delgamuukw v British Columbia, [1997] 3 SCR 1010.............................................................................17
Three-Part Test for Proving Aboriginal Title:.....................................................................................19
The R v Sparrow Test:............................................................................................................................20
Encroaching on Aboriginal Title:............................................................................................................20
Legal Remedies for Encroachment:...................................................................................................20
Tsilhqot’in Nation v British Columbia, [2014] 2 SCR 256........................................................................20
Gitxsan Legal Systems:...........................................................................................................................21
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Equity and Trusts:......................................................................................................................................22

History of Equity and Trusts:.................................................................................................................22
Presumptions of Trust:..........................................................................................................................23
Pecore v Pecore, [2007] SCC..................................................................................................................24
Transfer of Property Through Gifts:...........................................................................................................25
Nolan v Nolan & Anor, [2003] Victoria Supreme Court.........................................................................26
Relative Nature of Possession:..................................................................................................................27
Parker v British Airways Board, [1982] QB 1004....................................................................................27

Introduction:
Types of Property:
 Private property.
 Public property (owned by the state).
 Common property (property that each person has a right to use, and to be not excluded
from).

Nature of Property:
 Property is a right, not a thing.
 Property law is the state reinforcing one’s right to property.
 Property is distinct from possession.
 Property rights are an enforceable claim to the use and benefit of a thing.
 Property rights are enforceable against everyone.
 Property depends on a moral claim that society enforces.
 Some property rights are recognized in equity but not in Common Law.
Single-variable essentialist view of Property:
 The single-variable essentialist view of property believes that the most important defining
part of property is the right to exclude others from using that thing.
 This view states that without the right to exclude, property rights would not exist.
 The right to exclude can exist alongside other attributes, but these other attributes are not
essential. If only the right to exclude exists, that is enough for property rights to exist.
Multi-variable essentialist view of Property:
 Multi-variable essentialism states that the right to exclude is necessary but not sufficient
alone to establish property rights.
 The right to exclude exists among other rights which are also necessary.
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Nominalist view of Property:

 This view states that property is an empty concept that is created by each society and
state where it exists.
 No single attribute or set of attributes make up property rights in this conception.
 This is the “bundle of sticks” view, where each stick is a certain right or attribute and
together they make up property rights.
 No single stick is necessary, but there need to be some present.
 This states that the definition of property changes over time as society and morals
change.

Yanner v Eaton, (1999) High Court of Australia

Facts:
 Yanner, an Australian aboriginal, was charged with taking fauna without authority under
the Fauna Conservation Act.
 Yanner argued that he was exercising his native title right to hunt under the Native Title
Act, 1993.
 The Australian government argued that it had absolute and full beneficial ownership of
fauna.
Issues: Does the Australian government have absolute and full beneficial ownership of fauna
under the Fauna Conservation Act?
Held: No.
Reasons:
 The court stated that possession is a fundamental requirement of a property right.
 The court stated that possession of wild animals was essentially impossible, especially in
the case of migratory animals such as birds, which pass over large areas of land and
sometimes over national boundaries.
 The court instead stated that the Fauna Conservation Act was intended to stop poaching
and over hunting, and that the language of the Act was intended to allow for the
regulation and preservation of wildlife.
Ratio: The Fauna Conservation Act did not confer absolute and full beneficial ownership of
wildlife to the Australian Crown.

Justifications of Property:
 The institution of private property constantly needs justification.
 People ask if private property should be recognized, and when it should prevail over
other kinds.
 Should private property exist at all?
 There are six justifications of private property.
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Rights of Discovery:
 This arose from the Age of Colonialism in the 1600s and 1700s and the discovery of new
lands by European powers.
 Based on the old Roman Civil Law.
Labour Theory:
 This is based on the idea that when someone invests their labour into land they get rights
of property to that land. Ziff says this view is justifiable if a person has put time and
effort into their property.
Personality Justification:
 This is the idea that private property is necessary for the development of autonomous
personhood. Also called “Human Flourishing Theory”.
Economic Theory:
 This idea states that private property maximizes a society’s economic productiveness.
Private property limits exchange costs and therefore facilitates exchange. This increases
individual and societal wealth. Also called “Material Wealth Theory”.
Utilitarian Theory:
 The philosophical idea that the goal is the greatest happiness for the greatest number of
people. Some philosophers say that private property is the best way to do this.
Rights-Based Theory:
 A moral standpoint that says we should look at individual interests behind private
property and ask if they are justified in being given government support.

Moore v Regents of the University of California, 793 P (2d) 479 (Cal

Sup Ct 1990)
Judicial History: Heard in the Supreme Court of California on appeal.
Facts:
 Moore was a patient at the UCLA Medical Center undergoing treatment for leukemia. He
started treatment in 1976.
 The doctors treating him realized his cells possessed special qualities valuable for
research, and extracted and used the cells without his consent.
 The doctors had Moore come back to the UCLA Medical Center regularly until 1983 in
order to keep extracting cells for research.
 Moore’s cells were the basis for a very successful and profitable line of cells which were
patented.
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 Moore sued for the tort of conversion, alleging that his cells had been his property and
were used for the benefit of another without his consent.
 Tort of Conversion: A tort that protects against someone interfering with the ownership
or possession of someone’s property without their consent.
Issues: Does the tort of conversion apply to human cells/body parts? Were Moore’s cells his
property after they left his body?
Held: The court ruled that the tort did not apply, and that once Moore’s cells left his body they
were not his property.
Reasons:
 In order for Moore to sue for conversion, he needed to retain property rights over his cells
after they left his body.
 The majority ruled that Moore’s cells were no longer his property after they were
extracted. The majority used several reasons:
1. No reported previous case supported Moore’s claim.
2. California legislation limits patients’ rights over their extracted cells (extracted cells
had to be incinerated after they were used).
3. The Regent’s patented cell line was distinct from Moore’s extracted cells, and so it
could not be Moore’s property.
 The majority dismissed Moore’s argument that wrongful publicity cases applied.
 The majority also hesitated to extend the tort of conversion because it is a strict liability
tort. This means people who unknowingly used wrongfully extracted cells which were in
cell depositories for public use could be liable. This would be bad for innovation and
research.
 The majority also argued that this was more a topic for the legislature than the courts to
decide.
Dissent:
 The dissent stated that morally this was exploitation and commodification of the human
body. The dissent compared it to slavery.
 The dissent also argued that the majority overstated the danger of extending the tort of
conversion, and that there were ways to deal with the possible stifling of research.
 The dissent also said it wasn’t fair to those who donated cells to not benefit from massive
profits.
 Finally, the dissent said that it was the role of the courts in common law to deal with
questions like these, and not leave them to the legislature.
Ratio:
 In order to maintain a tort of conversion, there has to be interference with the
possession/ownership of property.
 The court ruled that human cells are not property once they are removed.
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 Moore thus had no property interest over his cells once they were extracted.

Ktunaxa Nation v British Columbia, (2017) SCC

Facts:
 The Ktunaxa Nation is an aboriginal group in British Columbia.
 The British Columbia government allowed a company to build a ski resort on traditional
Ktunaxa land.
 The Ktunaxa claimed violation of their freedom of religion under the Charter.
 The area where the ski resort was to be built was considered by the Ktunaxa to be the
home of the Grizzly Bear Spirit.
 The Ktunaxa were concerned that the construction of the ski resort would lead to harm to
the spirit.
Issues: Did the Crown’s approval of the ski resort project violate the Ktunaxa’s freedom of
religion?
Held: No.
Reasons:
 The court held that recognizing a right to freedom of religion in this case would be akin
to recognizing a right to property. The two were virtually indistinguishable in this
situation.
 The land where the Ktunaxa claimed the spirit resided was publicly-owned land. This
meant that recognizing the right would give the Ktunaxa the right to exclude others from
land they did not own.
 The court therefore rejected the claim from a public policy perspective.
Ratio: The Ktunaxa claim did not fall under freedom of religion in the Charter. Courts are
hesitant to recognize a novel property claim.

History of Real Property Law:

The Doctrine of Tenure:
 The doctrine of tenure is the idea that the Crown is the only entity which can have
absolute ownership of land. The Crown owns all land, everyone else is a tenant on the
land of the Crown.
 The doctrine of tenure is one of the two foundational doctrines of common law real
property law.
 English property law begins with the Norman Invasion of England in 1066, when
William the Conqueror became owner of all English land by right of conquest.
 This was unlike Continental Europe. In England, the King/Crown owned all land.
 No allodial (absolute) ownership of land in Canada except by the Crown.
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 Everyone in Canada today (except First Nations) holds land in free and common socage.
This means duties to the land owner were fixed and could not change over time. In
Alberta, this is because the King of England granted the Hudson’s Bay Company
Rupert’s Land (most of Alberta included) in free and common socage. Rupert’s Land was
then sold to the Canadian govt in 1870.

 Incidents of Tenure: The obligations and duties which go with land and tenure. In Canada
the only one remaining is escheat.
 Escheat: The idea that unclaimed land reverts back to the Crown.

 These concepts have many after-effects in our real property law system.
 It is the foundation to the Crown’s right to escheat.
 Aboriginal Title Law is an exception to the doctrine of tenure.

The Doctrine of Estates:

 This is the second foundational doctrine of common law real property law.
 This means that we don’t own land or hold land, we hold an estate in land until the holder
dies without heirs and without a will.
 This is called fee simple. Most estates in Canada are held in fee simple.

Albertan Reception of English Property Law:

 Alberta’s reception of English common law comes from the way the colony was created.
 Colonies could be created through conquest, discovery, and cession through treaties.
 There was a legal difference in England between colonies settled and colonies
ceded/conquered.
 Settled colonies automatically gained English laws. The laws came with the settlers.
 Ceded/conquered colonies retained their old laws unless they were changed by the King
or an affront to God.
 Only laws in force up to the date of reception to the Dominion of Canada were brought
by settlers. This is the Doctrine of Reception.
 After 1870 Rupert’s Land was sold to Canada, so English laws stopped being brought
automatically.

Acquisition of Sovereignty:
 When the Crown claimed sovereignty over Canada, it gained radical title because
indigenous people were already living there.
 Radical title is a legal invention made to support the doctrine of tenure despite the
presence of indigenous people before Europeans arrived.
 Radical title is what is leftover after you subtract Aboriginal Title Law.
 Radical title gives the govt the right to encroach on aboriginal title if it can justify doing
so.
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Indian Reserves on the Prairies:

 For the indigenous people, reserves were a way of protecting their traditional way of life.
 For the government, the reserves were a way to convert the indigenous people from their
nomadic lifestyle to an agricultural lifestyle.
 Between 1886 to 1911, 21% of reserve land was surrendered back to the federal
government.

Numbered Treaties:
 In the prairie provinces (AB, SK, MN) the indigenous people surrendered their title to the
land through numbered treaties. In exchange, they received reserves, guaranteed rights,
and other agreements.
 According to the treaties, the reserves were to be placed near lakes and rivers. They were
intended to provide farmland for each family of 5 (one square mile per family).
 The numbered treaties are sometimes called ‘cede and surrender’ treaties in contrast to
the treaties of Peace and Friendship on the East Coast, which didn’t have any exchange of
land.
 Treaties maintained the right to hunt on land that was ceded in the treaties except for land
that was ‘taken up’ by the Crown for its use. This has caused controversy since
eventually all ceded land will be ‘taken up’.

Ownership of Reserve Lands:

 In St. Catherine’s Milling and Lumber Co. v R, (1888) 14 App. Cas. 46 (P.C.) the Privy
Council ruled that upon the surrender of Indian title by treaty, that land was owned by the
provincial Crown.
 In the prairie provinces, the federal Crown retained control and administration of Crown
lands until 1930, when the Natural Resources Transfer Agreements transferred control
back to the provinces.
 The ABCA ruled in Reference re Stony Plain Indian Reserve #135 that the title to
surrendered Indian lands belongs to the province.
 The control of lands on the reserves belongs to the federal govt.

Key Statutes Regarding Aboriginal Property Rights:

Indian Act:
 S. 20-29: Possession of lands in reserves.
 No Indian is in lawful possession of reserve land unless the minister grants them that
land. They have to ask for permission to make permanent improvements to the land.
Two-year periods of land ownership are allotted and extended at the discretion of the
minister.
 Band councils can allocate and transfer land within the Nation, but it must be
approved by the minister. Land cannot be alienated outside the band because the land
title is collective.
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 S. 25: An Indian who ceases to be entitled to reside on a reserve may, within six months
or such further period as the minister may direct, transfer to the band or another member
of the band the right to possession of any lands in the reserve of which he was lawfully in
possession.
 Women lost status as a member of the band if they married a non-Indian.
 S. 28: Subject to subsection (2), any deed, lease, contract, instrument, document, or
agreement of any kind, whether written or oral, by which a band or a member of a band
purports to permit a person other than a member of that band to occupy or use a reserve
to reside or otherwise exercise any rights on a reserve is void.
 Only the minister can administer these permits. There is no autonomy over the land.
 S. 35: Lands taken for public purposes.
 The Crown may take or use any land without the consent of the people living on it as
long as the governor in council accepts.
 S. 37-41: Surrenders:
 S. 37: Lands in a reserve shall not be sold nor title to them conveyed until they have been
absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band whose
use and benefit in common the reserve was set apart.
 Under the other sections, land is allowed to be surrendered to the Crown. It is void to
attempt to surrender reserve land to anyone but the Crown and whether the majority
of the band agrees to the surrender. Cabinet has to accept the surrender.
 The Crown can still acquire any land they want.
 S. 42-46: Descent of Property
 The minister has control over what happens to land owned by deceased persons and
authorizes the administration of property and wills. No wills of Indians are valid
unless approved by the minister. The minister gets to decide whether the actions
under the will are appropriate.
 Outside the reserves, the courts decide if a will was written under duress or to make a
will void.
 If someone on reserve land dies without a will, the minister gets to decide what
happens to their land.

Family Homes on Reserves and Matrimonial Interests of Rights Act:

 S. 13-16: Family Home Occupation.
 Both spouses or common-law partners can live in the same family home even if one
party is not a First Nations member. When the spouse/partner dies, the survivor who
does not hold interest or right to the home has 180 days to leave.
 S. 16: Emergency Protection Orders.
 Protections for situations of family violence allows special orders for court protection.
Bands are able to make their own codes about what should be done in these cases.

First Nations Land Management Act:

 The FNLMA allows First Nations to enact and administer their own land codes.
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 They have to opt-in to the framework of the FNLMA but until then are still subject to the
land governance rules in the Indian Act.
 The Indian Act is the default and applies until the FNLMA applies. 159 First Nations
across Canada have now entered into these types of agreements, though none yet in
Alberta.
 S. 6: First Nations can establish their own land management regimes in accordance with
the framework agreement of the act.
 A land code established under the act can include general rules about occupancy,
leases, interests or rights in the land, transfer, succession, etc.
 S. 18-24: First Nations that create a land code that has come into force have the power to
manage their land and exercise the established powers and perform their duties and
functions.
 The power to make laws regarding the land now goes to the council of that nation.

Other:
 In BC, the Nisga’a Treaty, a more modern treaty, allows the Nisga’a to hold fee simple
title on their land, and members of that nation are free to sell to third parties while still
holding those parties to Nisga’a law.

Formation of Alberta Property Law:

 Property law in Alberta developed from a combination of the doctrine of reception and
from adaptation to local circumstance.
 Alberta did not begin to be settled by Europeans until the 19th century.
 As the Europeans expanded westwards, they did so on the basis of the idea of Indian title,
which said the govt had to buy the right to use/settle the land from the indigenous peoples
through treaties.
 Indian title was not recognized in BC.
 Alberta and Saskatchewan were made into provinces in 1905.
 There was a need to create and codify property law to drive development.
 The land was surveyed and divided into plots.
 The reserves were not divided into plots since they pre-existed the surveys.
 The plots were practically given away to promote settlement. The person who owned the
plot had three years to build a habitable structure. This was to prevent land speculation.
 The plots were square and were subdivided into smaller square plots.
 The Hudson’s Bay Company owned a portion of most plots since there was an agreement
the HBC would own 1/20th of the land in the west after it sold Rupert’s Land. This land
was scattered and dispersed in the plots.
 The railway was also granted almost half of all plots in the west.
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Boundaries
Airspace:
 The owner of the surface owns the airspace to a certain extent above their property, and
this ownership precludes trespass by both permanent structures and temporary intrusions.
Demonstrated by Didow.

Didow v Alberta Power Ltd., 1988 ABCA 257, 1988 CarswellAlta 109
Judicial History: An appeal to the Alberta Court of Appeals by Didow. The trial judge ruled for
Alberta Power Ltd.
Facts:

 The appellant, Didow, owned a plot of land and had a farm on that land.
 The respondent, Alberta Power Ltd. (APL) constructed power lines adjacent to Didow’s
property. The horizontal poles on top the powerlines over hanged Didow’s property.
 Didow argued that APL committed trespass in the airspace above his land, which he
argued was part of his property.
Issues:

 Does a person have property rights to the airspace above their land?
 If so, does the construction of a structure which infringes on part of that airspace
constitute trespass?
Held:

 The court ruled that individuals have a property right to a limited amount of the airspace
above their land.
 This property right precluded trespass by any permanent structures and by low-flying
aircraft.
 However, it did not extend to the height of commercial aircraft.

Reasons:

 The court first cited an old Latin maxim which essentially states that people have
property rights over the airspace above their land.
 However, the court found that this maxim originated in 13th century Italy and thus could
not be applied without qualifications in the modern world, with the development of
commonplace commercial aircraft.
 The court showed that a number of previous court decisions had taken the view that the
Latin maxim applied to a certain height of airspace, usually that which could be
practically used by the owner of the land.
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 However, that certain height did not have to be actually used by the owner in order for
the owner to have property rights. Instead, it needed to have the potential to be used.
 The court defined intrusions in airspace into two categories:
 Intrusions of permanent structures.
 Intrusions of a temporary and transient nature, such as aircraft.
 The court found that there were clear grounds for trespass on the first category.
 There could also be grounds for trespass on the secondary category if the aircraft was
flying too low.
 However, the court recognized that in the modern world it was necessary for aircraft to
fly somewhere, so property rights over airspace was not unlimited. In addition, aircraft
fly so high that they are unlikely to infringe on any potential use of the land.
 However low-flying aircraft or permanent structures can infringe on potential use, so
there is grounds for trespass of airspace.
 Therefore, the power lines were trespassing on the appellant’s property rights over his
airspace.
Ratio: Individuals have property rights over the airspace above their land to a certain extent,
both against permanent structures and temporary intrusions. However, this property rights only
reaches a certain height and is not unlimited.

Subsurface:
 The owner of the surface owns the subsurface, subject to any reservations. Demonstrated
by Edwards.

Edwards v Sims, 24 SW 2d 619 (Ky CA 1929)

Judicial History: An appeal to the Kentucky Court of Appeals.
Facts:
 Edwards owned some land on which there was an entrance to a large cave. He operated a
tourist attraction out of the cave, providing tours of the cave to visitors.
 The cave extended under the adjoining property of Lee, but there was no entrance on
Lee’s property to the cave.
 Lee commenced an action against Edwards on trespass, using the Latin maxim cujus est
solum…, which essentially states that the owner of the land also owns the air above it
(indefinitely) and the earth beneath it (indefinitely).
 Lee requested a survey to be done of the cave to see if it lay under his property, to which
Edwards objected.
Issues: Do property rights extend downward to inaccessible areas below the property?
Held: Yes.
Reasons:
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 The majority held that property rights extend downwards according the Latin maxim
cujus est solum…, and thus Lee’s property rights extended to any portion of the cave
below his land.
 The court cited case law which established precedent for the surveying of mines to
determine if they lay beneath the land of third parties. The court reasoned that if mines
could trespass beneath property, so could caves.
Ratio: The Latin maxim cujus est solum… holds true for the earth beneath one’s land. The
owner of the surface owns the subsurface, subject to any reservations.
Dissent: Logan J., writing for the dissent, argued strongly against the opinion of the majority. He
held that extending property rights indefinitely below the earth and including everything below
the earth in one’s property was unequitable, since finding trespass for Edwards cave would be
detrimental to Edwards, without providing Lee with any benefit. The dissent instead proposed
that property rights should extend below the earth to that which the owner of the property could
use for their benefit. Therefore, this would not apply to a cave to which they had no access.
Caves would instead be owned by those who owned the land where the entrance was found. The
dissent also used the labour theory of property to argue that Edwards had found and developed
the cave, and so had better claim to it.

The Coase Theorem:

 The Coase Theorem is the idea that without transaction costs, it does not matter how
property is allocated, since it will eventually be exchanged to its most efficient allocation.
 This is an ideal, since in real life transaction costs such as monopolies, holdouts, legal
fees, etc. exist.
 The legal scholar Epstein proposed six solutions to the problem raised in Edwards:
1. Owner of the surface owns the subsurface (this was the solution decided on in
Edwards).
2. The discoverer of the cave owns it.
3. The owner of the entrance owns the cave.
4. Co-Ownership based on surface ownership.
5. The party which is willing to buy out the other parties owns the cave (based on #4).
6. The state owns the cave.
 Epstein favoured #3, because it prevents the issue of holdouts.

Legal Realism and Legal Archaeology:

 Legal realism is the idea that biases always play a role in judicial decisions, even though
the ideal is an unbiased and objective judiciary. Legal realists argue that the backgrounds
and biases of judges will always play a role in their reasoning.
 Legal archaeology is the idea that the context of cases and the personal history of judges
should be explored to demonstrate how judicial decisions are made.
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“Subject to Reservations” in Subsurface Property Rights:

 When someone owns subsurface property subject to reservations, the term ‘subject to
reservations’ means mineral rights.
 This is based on historical precedent in Canada.
 The BNA Act in 1867 in s. 109 declared that mineral rights in the eastern provinces
belonged to those provinces.
 In 1871 the HBC sold Rupert’s Land to Canada. Part of the deal was that the HBC would
retain 1/20th of the surveyed land in the fertile belt.
 The CPR also got an allocation of surveyed land in exchange for building the railway.
 Early homestead grants by the government included everything below the surface.
 In 1877 the Crown began reserving mines and minerals below the surface in homestead
grants.
 The HBC was also granting homesteads. In 1908 it too started reserving mines and
minerals in homestead grants.
 This also applied to the CPR, who began reserving mines and minerals in its grants in
1902. The CPR first reserved mines and minerals, and then coal, and then petroleum, etc.
 In 1930 the western provinces got the same rights to their mines and minerals as the
eastern provinces.

Possession:
 Possession is distinct from a property right, but usually the two coexist.
 Ownership is the highest property right and will always beat simple possession.
 Possession has two elements:
1. Animus Possidendi: Mental element, the intent to possess.
2. Factum: Physical element of control and the power/ability to exclude others.
 A pre-possessory interest may be found by the courts when intention or physical control
are not complete.

Popov v Hayashi, 2002 WL (Cal SC)

Facts:
 At a baseball game, the player Barry Bonds broke the record for home runs by hitting his
seventy-third home run.
 The event was anticipated among baseball fans, and the ball he hit was valuable to many
baseball fans.
 The area where it was predicted he would hit the ball was crowded with people hoping to
catch it. Among them were Popov and Hayashi, both of whom had brought baseball
gloves.
 When the ball was hit, Popov caught it in his glove. He may have lost his balance, but as
he was catching the ball he was attacked by a mob of people, who threw him to the
ground and tried to get the ball.
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 Hayashi was caught up in the attack by the mob but managed to extricate himself. He
found the ball lying on the ground nearby and took it. When Popov saw Hayashi had the
ball he demanded it, but Hayashi refused to hand it over.
 Popov sued Hayashi on grounds of trespass and conversion of property.
Issues:
 Did Popov establish possession over the baseball?
 Did Hayashi commit the tort of conversion on the property?
Held:
 The court ruled that the baseball was equally under the possession of Popov and Hayashi.
 Therefore, Hayashi did not commit conversion on Popov’s property, since he had an
equivalent claim to the ball.
Reasons:
 The first question was if Popov had established possession or right to possession over the
baseball.
 This is because for conversion to have occurred, Popov had to have some kind of
property right over the baseball.
 Popov and Hayashi argued different definitions of possession. In order to resolve the
dispute, the court had four law professors define possession in the context of this case.
 The first principle the court adopted were that possession required physical control and
intent to control an item.
 Then, the court needed to create a definition of possession that applied to this case.
 The court adopted the definition of possession given by Professor Gray:
 In essence, Gray stated that a person must retain contact of the ball after incidental
contact with other people or things, and that if the person loses control of the ball, the
first person to pick it up has established possession over the ball.
 The court stated that this definition could not resolve the case, since Popov’s contact with
others was not incidental. He had been illegally mobbed, and the court felt the need to
condemn the behaviour of the mob.
 Popov had not established possession of the ball according to the definition. However, he
had established a pre-possessory interest in the ball, since the court ruled it was
impossible to know if he would have established possession according to Gray’s
definition if he hadn’t been mobbed.
 Pre-possessory interest is a qualified right to possession.
 However, the court found that Hayashi had established possession according to Gray’s
definition. This possession was affected by Popov’s pre-possessory right.
 Therefore, neither man had established full possession of the ball, but both had an equally
strong claim.
 The court used the concept of equitable division to solve the issue. Where multiple
parties had an equal claim to an item, the item was divided among the parties.
 16

 The court ordered the ball to be sold, and the proceeds to be divided among the parties.
Ratio: Possession requires physical control and intent to control of an item. However, the
definition of intent can be qualified and changed according to the particular circumstances of the
case.

Aboriginal Title:
Overview:
 Aboriginal title is important to First Nations communities because the reservations
curtailed the aboriginal ability to progress and thrive.
 A Harvard study found that land base and self-governance were the most important in
determining economic success for indigenous communities.

 The current law in Canada is based on the Doctrine of Discovery. In Canada, the
Doctrine of Discovery was based on the concept of terra nullius, or unclaimed and
uninhabited land.
 This ran into issues, since Canada was already inhabited by indigenous people.
 The Labour Theory was then applied. This stated that Europeans had title to the land
since they had put labour into it through agriculture, while it was claimed the indigenous
had not.
 Some indigenous communities had used agriculture, but this was discounted by
Europeans, who said it was not done with intent to own the land.

Legal History:
Royal Proclamation of 1763:
 The Royal Proclamation of 1763 was an attempt by the British to maintain good relations
with the First Nations. It asserted that First Nations land could only be sold to the Crown.
 Any sale of First Nations land required a meeting with the Crown and consent by the
First Nations group in question.
 While this limited individual land speculation by settlers, it also limited First Nations
autonomy and established a paternalistic relationship with the Crown.

Johnson v M’Intosh, (1823)

 This was a dispute between the State of Georgia and a local First Nations group.
 The court used the Doctrine of Discovery and the ‘superior genes of Europeans’ as
justification to necessarily impair the rights of the First Nations group.
 The court claimed that the Doctrine of Discovery gave the Crown underlying title on the
land.
 However, the indigenous people still had the right to use and occupy the land.
 17

St. Catharine’s Milling and Lumber Co. v R, (1887) SCC

 This case limited aboriginal title to an usufructuary right, or the right to use but not take
goods or benefits from, rights at the “good will of the sovereign.”

Calder et al. v Attorney General of British Columbia, [1973] SCC

 This reversed the decision in St. Catharine’s Milling, and established that aboriginal title
is a justiciable legal interest. It did not specify what aboriginal title is.

Guerin v the Queen, (1984) SCC

 This case established that indigenous people maintain occupancy and possession of the
land, despite the justified title that the Crown holds. This case was based on Johnson v
M’Intosh.

Delgamuukw v British Columbia, [1997] 3 SCR 1010

Judicial History:
 An appeal to the SCC.
 The appellants, the Gitskan and Wet’suwet’en chiefs, claimed different portions of a
large space of land in BC on which their people had homes. The BC govt told them they
had no right or interest in the territory. More than just the groups in question lived in the
space, like other aboriginal people and non-aboriginal people.
 During the trial a massive amount of evidence was heard, including oral history from
indigenous witnesses. The oral evidence was discounted by the trial judge.
Issues:
 Do the pleadings stop the SCC from entertaining claims for aboriginal title and self-
government?
 Was the evidence at trial handled appropriately?
 What is the nature of aboriginal title?
Held:
 The original claim asserted at trial for ownership and jurisdiction over the land was
replaced for claims of aboriginal title and self-government on appeal.
 However, those claims were not formally changed despite the nations having the
option to do so. As a result, a new trial was ordered to consider the two new claims.
The court recommended avoiding another lengthy trial and instead negotiating.
 Appellate courts should (and do) hesitate from questioning how evidence was handled at
trial. However, since aboriginal title claims come from a society which didn’t have
writing and instead used oral history, it deserves special consideration.
 The SCC ruled that the trial judge erred in discounting oral evidence. It held that in
aboriginal title cases, oral evidence deserved equal weight.
 This issue is discussed below.
 18

The Nature of Aboriginal Title:

 Delgamuukw established the concept of aboriginal title in property law.
 The court defined aboriginal title in relation to s. 35(1) of the Constitution Act, which
guarantees the protection of aboriginal rights. Much of the definition of aboriginal title
follows precedent cases on aboriginal rights under s. 35(1).
 The court found that aboriginal title was also protected under s. 35(1). Aboriginal title is
a constitutionally-protected right. This is because aboriginal title existed before the
establishment of Crown sovereignty, and therefore is a pre-existing aboriginal right.
 The SCC ruled that aboriginal title was sui generis, or unique from other title in Canada.
This uniqueness was because:
1. It is inalienable except to the Crown.
2. It has inherent limits based on the traditional nature of the occupation of the land by
the aboriginal group. The land can’t be used in a way that would prevent that
traditional occupation/use.
3. It is held communally by the entire band, rather than by an individual.
 The court found that aboriginal title was based on:
 Prior occupation and use of the land by the aboriginal group alleging title,
 Common law,
 Aboriginal law.
 The content in the bundle of rights of aboriginal title is:
 The right to exclusive use and occupation of the territory.
 It is subject to the inherent limits.
 Aboriginal title could not be extinguished by provincial governments before 1982. This is
because s. 91(24) of the BNA Act states that “Indians, and lands reserved for the Indians”
were the authority of the federal govt.
 Aboriginal title is a burden on the underlying Crown title on land which was established
at sovereignty. The Crown can encroach on aboriginal title, but under very specific
circumstances. See below in the Notes for Tsilhqot’in.

 The court laid out the definition of aboriginal title:

 “Aboriginal title is the right to exclusive use and occupation of the land held pursuant
to that title for a variety of purposes, which need not be aspects of those aboriginal
practices, customs and traditions which are integral to distinctive aboriginal cultures;
and second, that those protected uses must not be irreconcilable with the nature of the
group’s attachment to that land.”

 Aboriginal title is subject to inherent limits.

 The court found that one of the foundational elements of aboriginal title is the occupation
and use of the land in question by the aboriginal group in a way that makes that land an
integral part of the group’s distinctive culture.
 This is the “nature of the group’s attachment to that land” referred to in the definition
above.
 19

 Therefore, according to the definition, if an aboriginal group establishes title over land
because the land was occupied and traditionally used for hunting, the group cannot then
develop that land so it can’t be used for hunting anymore.
 This doesn’t mean that only the traditional use is allowed on the land. So, in the above
example, the aboriginal group can do more than just hunt on the land, but it can’t make
the land unsuitable for hunting.

Three-Part Test for Proving Aboriginal Title:

 The court formed a three-part test for proving aboriginal title:
1. The group alleging title must show sufficiency of occupation at the time of the
establishment of Crown sovereignty.
 The onus of proof here is on the aboriginal group claiming aboriginal title. It must
prove that the group occupied the land when the Crown established sovereignty.
 This requirement is partly based on common law and on aboriginal law.
 In common law, physical occupancy is proof of possession at law. Occupancy can be
proved through cultivation of fields, construction of dwellings, or regular use of the
land for hunting and fishing.
 Aboriginal law comes into play because the aboriginal group must demonstrate that
their connection with the piece of land played a central role in their distinctive
culture. Also, aboriginal law such as treaties and rules against trespass demonstrate
occupancy.
2. If present occupation is relied on as proof of occupation prior to sovereignty, then there
must be a continuity between present and pre-sovereignty occupation.
 The aboriginal group asserting title must also show that they occupied the land in a
more-or-less continuous manner from pre-sovereignty times. This continuity doesn’t
have to be unbroken and can have been disrupted for a time. The court defined it as
“substantial maintenance of the connection” between the people and the land.
 The type of occupation also doesn’t have to be consistent or the same, but it must
have remained significant.
 This step is only considered if present occupation is used as proof of prior occupation.
So it is not always considered or required by the court.
3. At the time of the establishment of Crown sovereignty, occupation must have been
exclusive.
 The aboriginal group alleging title must prove that their occupation was exclusive
(i.e. they had the power to exclude others).
 This part of the test is required because otherwise, multiple different groups could
claim aboriginal title over the same piece of land.
 The presence of other aboriginal groups on the land doesn’t preclude exclusivity. The
court ruled that treaties between the aboriginal group alleging title and other groups
which allowed access or activities such as hunting could be proof of exclusive
occupation.
 In other words, if the aboriginal group could grant permission to other groups to be on
the land, this means their occupation was exclusive.
 20

The R v Sparrow Test:

1. Can the claimant establish an infringement?
 Is there an unreasonable limitation, undue hardship, or the denial of preferred means
to exercise a right?
2. Can the infringement be justified by a valid objective that aligns with the Crown’s
fiduciary duty?
 Is there a substantial and compelling legislative objective?

Encroaching on Aboriginal Title:

 Defined by the SCC in Tsilhqot’in. See below.
 Due to its underlying title, the Crown can encroach on aboriginal title.
 Proven and unproven aboriginal title establishes a duty to consult to the Crown.
 If the aboriginal title is unproven, the Crown must only consult and accommodate.
However, consent is not required. The level of consultation and accommodation is
based on how strong the unproven claim is.
 Stronger unproven claim requires involving aboriginals in the decision-making
process, and to possibly change the plan and accommodate First Nation interests.
 A weaker unproven claim requires informing the affected group and listening to their
concerns.

 Consent is required from the title-holders of proven aboriginal title. To justify infringing
on proven aboriginal title without consent, the Crown must show 3 things:
1. That it discharged its procedural duty to consult and accommodate the aboriginal title
holders.
2. That the infringement is backed by compelling and substantial objectives.
 These can include the economic development of the interior of British Columbia.
Mines, logging, etc.
3. That the infringement is consistent with the Crown’s fiduciary duty to aboriginal
people. This means the Crown must still comply by the inherent limit to the title.
 If consultation or accommodation is found to be insufficient, the govt action can be
quashed or reversed.

Legal Remedies for Encroachment:

 Before aboriginal title is established, the remedies available to a First Nations group if the
Crown fails to discharge its duty of consultation in good faith are injunctions, damages,
and an order to consult from the court.
 After aboriginal title is established, the remedies available are the usual remedies for
breach of interest in land, such as reassessment and damages.
 21

Tsilhqot’in Nation v British Columbia, [2014] 2 SCR 256

Judicial History: An appeal to the SCC for the assertion of aboriginal title. The trial judge
found proof of aboriginal title in 40% of the claim area, but this finding was reversed by the
BCCA.
Facts:
 This case did not start as an aboriginal title claim. It started as objection to logging.
 The Tsilhqot’in nation eventually sought a declaration of aboriginal title to a certain
claimed area.
 After a huge and lengthy trial with a huge amount of evidence, the trial judge stated that
aboriginal title had been proved for 40% of the claim area. However, the trial judge stated
that he could not make a declaration since the nation had made an all-or-nothing claim.
 The decision was appealed, and the BCCA stated that the claim had not been proven
since intensive occupation of the site was not proved.
Issues: Do the Tsilhqot’in nation have a valid claim to aboriginal title?
Held: Yes.
Reasons:
 The SCC applied the Delgamuukw test in order to determine if aboriginal title had been
proved.
 The BCCA had based its decision on an earlier case before the SCC, Marshall and
Bernard, where Justice McLachlin had ruled that intensive occupation was required to
prove aboriginal title.
 However, the SCC went back on the Marshall and Bernard ruling and stated in this case
that intensive occupation was not required. The court stated that the intensive occupation
requirement did not consider the aboriginal perspective on land ownership and imposed a
common law viewpoint on aboriginal practices before sovereignty.
 The SCC upheld the ruling of the trial judge and granted aboriginal title to the 40% of the
claim area which had been proved during the trial.
Ratio: This is the first time aboriginal title was recognized by a court in Canada.
Notes:
 The SCC also defined the requirements for encroachment on aboriginal title by the
federal government. To justify infringing on proven aboriginal title, the Crown must
show:
1. That it discharged its procedural duty to consult and accommodate the aboriginal title
holders.
2. That the infringement is backed by compelling and substantial objectives.
3. That the infringement is consistent with the Crown’s fiduciary duty to aboriginal
people.
 22

 Infringements on proven aboriginal title must still comply with the inherent limit.
 If the aboriginal title is unproven, the Crown must only satisfy step 1 of the test above.
The level of consultation and accommodation is based on how strong the unproven claim
is. Stronger claim equals more consultation and accommodation.
 If consultation or accommodation is found to be insufficient, the govt action can be
quashed or reversed.

Gitxsan Legal Systems:

 The sources of First Nations law are:
 Sacred
 Natural
 Deliberative
 Positivistic
 Customary
 The Gitxsan had/have a complicated legal system based on tradition, ceremony, and
kinship ties.
 The root of Gitxsan claim to a certain territory comes from something called a daxgyet.
This is a mythical encounter between a chief and the spirit of the land of a particular
place. This encounter merged the land with the chief and his group. Land was therefore
held by the chief’s lineage and in his name.
 The daxgyet encounter was recorded by the group in its adaawk, or oral history.
 The daxgyet was ritually recreated and thereby formalized in a feast called a yukw, where
the chief’s lineage hosted the feast. Legal matters were also taken care of at the yukw.
 The daxgyet was also formalized through objects such as crests and totem poles.
 Territory acquired through the daxgyet was indivisible. It could be passed from group to
group in times of war or as reparations for various offences, but it could never be
subdivided.
 A group without a territory or land had little status in Gitxsan society.
 The Gitxsan relationship to land was as to an equal – the land had equal status to people.

Equity and Trusts:

History of Equity and Trusts:
 Equity overrules common law.
 Equity was first developed in relation to land law, specifically in relation to the ‘use’, or
trust.

 The use, or trust, was valuable in feudal England.

 When a person formed a use, they transferred the legal interest in a title to another person
but retained the beneficial interest in the title.
 For example: “To F and his heirs for the use of G and his heirs.”
 23

 This avoided feudal incidents (obligations), especially the inheritance tax.

 In addition, a use could be bequeathed by will and it overcame the rigid common law
conveyancing rules.

 Terminology:
 Seisin/seizin/feoffee: holder of the legal title.
 Feaffor: granter of the title.
 Cestui que use: the person for whose benefit the title is held.
 Sometimes, the feoffee could subvert the agreement and not give the cestui que use the
proper use and benefit of the title. In this case the feoffor had no common law remedy,
since the common law didn’t recognize the use.
 Equity arose to hear these cases. The courts of equity said that the feoffee had a moral
obligation to uphold the agreement.
 This split title, between the legal title and the equitable title.

 The kings of England didn’t like the use since it deprived them of revenue from feudal
obligations.
 King Henry VIII passed the Statute of Uses, which decreed that when a use was formed
the cestui que use was automatically given the legal title.
 Before: “To F for the use of G and his heirs.”
 After: F lost the legal title, which passed to G automatically.
 The Statute of Uses could be avoided in 5 ways:
1. The legal title was held by a corporation rather than a person.
2. The grant of legal title wasn’t permanent, but rather for a fixed lease (i.e. 999 years).
3. Imposition of active duties to the feoffee, i.e. paying rent.
4. Being seized to one’s own use. This is standard land ownership.
5. Use upon a use. “To F for the use of G for the use of H.” In this case, the legal title
would automatically pass from F to G, but then leave the arrangement between G and
H.

 Terminology changed over time:

 Settlor (creator of trust)
 Trustee (holder of trust)
 Beneficiary
 The courts of equity and common law have been merged, but the two systems are still
separate. In the event of a conflict, equity prevails.
 Equitable remedies are always discretionary for the court.

Presumptions of Trust:
 There is a distinction between an expressly created trust and a resulting trust.
 The presumption of resulting trust is applied by the courts in two situations:
1. When an express trust fails to dispose of all the beneficial interest:
 24

 When F holds the land in fee simple and creates a trust for the use and benefit of
B for B’s lifetime. The legal title is held by the trust company while the equitable
right is held by B for life. When B dies, the legal and equitable title is presumed
to pass from the trust company back to F.
2. When F grants property to G as a gratuitous transfer, or gift. In this case the beneficial
interest is presumed to remain with F.
 The major exception to the presumption of resulting trust is when a gratuitous transfer
occurs between family members. In this case, historically the courts have applied the
presumption of advancement. The presumption of advancement dictates that when a
gift of property occurs between family members, both the legal and equitable interest is
transferred.

 The right of survivorship happens when property is jointly held. When one of the
holders dies, the right of survivorship dictates that ownership passes to the remaining
holder.
 The right of survivorship only applies to joint tenancies (where ratios of ownership
aren’t defined).
 In tenancies in common each holder has a defined ratio of ownership (F owns 50%, G
owns 50%). In this case the shares remain constant after death and are distributed
according to the holders’ will.

Pecore v Pecore, [2007] SCC

Facts:
 Edwin Hughes was a retired miner who saved up a large amount of money ($1.2 million).
He opened a bank account jointly with his daughter Paula.
 The money in the account was used by Edwin. In order to avoid Paula incurring capital
gains taxes on the money, Edwin wrote a letter to the bank declaring that the money in
the account was his alone, and not intended as a gift.
 Paula was married to Michael for many years, and Edwin and Michael were close. In
addition, Paula was undergoing financial difficulties.
 Edwin died in 1999, and his will divided his property between Paula and Michael. The
will stated that any property which had not been allocated between Paula and Michael
was to be divided evenly between them.
 Michael divorced Paula in 2001 and sued her for the $1.2 in the joint account, since it had
not been expressly allocated in the will. Paula argued that the money was hers through
the right of survivorship.
Issues:
 Did Edwin intend to make a gift of the money in the joint account to Paula upon his
death?
 If yes, does the presumption of advancement or the presumption of resulting trust apply
in this case?
 25

 If the presumption of resulting trust applies, is it rebutted by the available evidence?

Held:
 Yes.
 The presumption of resulting trust applies.
 That presumption was rebutted by the available evidence.
Reasons:
 The court stated that based on the evidence, it was clear that Edwin had intended to make
a gift to Paula. Concurrent with this gift was the gift of the right of survivorship to the
joint bank account. This inference was based on Edwin’s closeness with Paula and his
concern for her financial instability.
 The gift of the right of survivorship meant that Paula held legal title over that right, and
therefore the money. However, the equitable title was uncertain. If Paula didn’t hold
equitable title along with legal title, then the right of survivorship would revert back to
Edwin’s estate, meaning that the money would be divided between Paula and Michael.

 Next, the court looked at which presumption should apply. The presumption which
applied would dictate whether Paula held only legal title to the right of survivorship or
also equitable right.
 Typically, the presumption of advancement would apply in the case of a gratuitous
transfer between family members. However, the court stated that this only applied in the
case of a transfer between a parent and a minor dependant child.
 The court also clarified that the presumption of advancement also applied to gifts
from a mother to her child. Historically, it had only applied to gifts from a father to
his children, but the court recognized that mothers also had an obligation to
financially support their children in the modern age.
 The court stated that the presumption of advancement did not apply in the case of gifts
from a parent to an adult independent child or an adult dependant child. Paula had been
the latter.
 Therefore, the presumption of resulting trust applied to the right of survivorship. This
meant that Paula held the legal title, but not the equitable title.
 Paula could still rebut the presumption. She rebutted this presumption with evidence of
his intentions with the money before his death, and the fact that she was financially
dependant on Edwin, and that Edwin was concerned about her financial insecurity.
 Therefore, the court rebutted the presumption and stated that Paula held both legal and
equitable title to the right of survivorship. This meant the $1.2 million was hers alone.
Ratio: The presumption of advancement only applies to gifts from a parent to a minor dependant
child.
 26

Transfer of Property Through Gifts:

There are three main types of gifts:
1. Testamentary gift: Given through a will which takes effect on the gift giver’s death.
2. Inter vivos: A gift between living people.
3. Donatio mortis causa: Made in contemplation of death and is conditional on death.
A valid inter vivos gift is made in three ways:
1. By deed.
2. By declaration of trust (making a trust for the donee).
3. By delivery.

Nolan v Nolan & Anor, [2003] Victoria Supreme Court

Facts:
 The plaintiff was Jinx Nolan, the adopted daughter of the famous artist Sidney Nolan and
his wife Cynthia Nolan.
 Sidney Nolan had gifted many paintings to Cynthia over the course of his marriage.
Cynthia died in 1976, and Jinx Nolan was a major beneficiary in Cynthia’s will.
 Three paintings by Sidney Nolan remained in Sidney’s possession until his death in 1992.
After Sidney died, Jinx alleged that the three paintings had been gifted by Sidney to
Cynthia before Cynthia’s death, and therefore should pass to Jinx.
Issues: Can Jinx Nolan prove the three essential elements of an inter vivos gift by delivery?
Held: No.
Reasons:
 A valid inter vivos gift by delivery requires three essential elements:
1. Intention to make a gift on the part of the donor.
 Donative intent is key. It is usually established through words of present gift.
 If words of present gift aren’t present, intention to make a gift must be proved
through some other evidence.
 Sometimes, donative intent can be proved through documents and other evidence.
 The onus is on the person alleging the gift to prove donative intent.
2. Intention to receive a gift on the part of the donee.
 Usually this isn’t an issue, since a person who is alleging a gift was made will
obviously state they intended to receive the gift.
3. Delivery.
 Delivery is the act that marks the end of the donor’s control over the object/property
being gifted.
 If the donor retains control over the gift, then it isn’t a valid and perfect inter vivos
gift. Delivery is essential to perfect an inter vivos gift.
 27

 Donative intent must coincide with delivery.

 The types of delivery are:
 Actual (manual or physical transfer of goods).
 Constructive (when the nature of the good makes actual delivery impractical or
impossible, something short of actual delivery can be enough. This can also apply
if the donee already has control and possession of the object when donative intent
is expressed).
 Symbolic (a model or picture of something, though this is rarely accepted by
courts).
 When a donee and donor live in a common establishment, it is very hard to prove
delivery of a gift. Usually a written document relinquishing the donor’s control
of/title to the good is required.
 The court found that Jinx Nolan was unable to prove donative intent on the part of Sidney
Nolan. Though Sidney Nolan had at times referred to the paintings in question as
“Cynthia’s paintings”, the court ruled that this wasn’t sufficient evidence to establish
donative intent.
 In addition, the court in obiter stated that Jinx hadn’t proved that delivery occurred. The
paintings had only been in Cynthia’s possession when Cynthia and Sidney lived in a
common establishment. After Cynthia separated from Sidney, the paintings remained in
Sidney’s possession.
 Therefore, Jinx Nolan couldn’t prove that the three paintings had been gifted by Sidney
to Cynthia.
Ratio: A person alleging an inter vivos transfer must prove the three essential elements:
1. Donative intent.
2. Intent to receive gift.
3. Delivery.
Delivery can be:
 Actual.
 Constructive.
 Symbolic.

Relative Nature of Possession:

Parker v British Airways Board, [1982] QB 1004
Facts:
 The plaintiff, Parker was a traveller in Heathrow Airport.
 He lawfully entered the International Executive Lounge in the airport. The lounge was
leased by British Airways.
 28

 Parker found a gold bracelet in the lounge. He gave it to a British Airways employee,
along gave the employee his number and the instructions that if the bracelet wasn’t
claimed by its rightful owner, he wanted it.
 The bracelet wasn’t claimed, but British Airways didn’t return it to Parker. Instead, they
sold it and kept the proceeds.
 Parker sued British Airways, alleging that he had a superior right to the bracelet.
Issues: Does the finder of abandoned property have superior rights over the owner of the
premises where the property is found?
Held: Yes.
Reasons:
 The person with the strongest claim to abandoned property is its rightful or original
owner. However, in this case that person couldn’t be found.
 British Airways argued that it had a prior possessory right to the bracelet before Parker
found it, because the bracelet was found in their premises.
 Parker argued that the finder of lost chattel was entitled to it.
 This argument was based on the old case of Armory v Delamirie from 1722, when a
chimney sweep found a gold ring in a chimney and won an action against a jeweller
who had refused to return it when Armory brought it for appraisal.
 However, Armory v Delamirie was distinguished from this case because the ring
wasn’t found on the jeweller’s property.
 The court first defined some common law rules related to the finding of abandoned
property:
 Trespasser: The court stated that the owner of the premises where lost property is
found has superior rights over a trespasser who finds property there. This is based on
public policy reasons.
 A trespasser still has rights to found property, but these are ‘frail rights’ and easily
overridden by other claims.
 Employee: The court also stated that an employee who finds lost property during
their workday has rights to the property if the property wasn’t found during the course
of their employment.
 In other words, if the finding of the property is incidental to the finder’s job
duties, then the employee gets right to the property.
 But if the property is found during the course of their employment, the property
reverts to the employer.
 Occupier of Premises: An occupier of premises has superior rights to a finder if the
found goods were a fixture (i.e. a painting mounted on a wall) or attached to the
property in some way (i.e. buried in the ground).
 If the goods aren’t a fixture or attached, the occupier must show that they
occupied the premises in a way that manifests an intention to control the things in
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the property. This intention can be manifested through excluding others, or

through patrols around the premises, etc.
 The more effort which is taken to exclude others, the stronger the claim of the
occupier of the premises (i.e. bank vault on the high end of the spectrum, public
park on the low end of the spectrum).
 Based on these rules, the court held that Parker had a stronger claim to the bracelet.
 Parker wasn’t a trespasser in the lounge, nor an employee of British Airways.
 Furthermore, the bracelet wasn’t a fixture in the lounge, and it wasn’t attached to the
lounge.
 Finally, British Airways hadn’t manifested any intention to control the things in the
lounge.
 Thus, the court ruled that the bracelet belonged to Parker.
Ratio: A finder has superior claim to abandoned property over everyone except the original
owner and someone who can prove prior possessory interest according to the rules above.