Boundaries

Question 1

Didow v Alberta Power Ltd Facts

Answer 1

• An electrical utility company built a power line on a municipal road that runs alongside the appellant’s land
• The cross arms conductors and attaching wires at the top of each pole protrude six feet into the airspace above Didow’s Land
• The appellant seek a declaration that the crossarms amount to trespass
• The appellants are concerned with the interference the cross arms will have with their use of the land

Question 2

Didow Issue

Answer 2

• Has the respondent trespassed the airspace above the appellants land
• What is the extent of the rights acquired by the appellants to the column of air above and within the boundaries of the land

Question 3

General principles for Airspace from Didow

Answer 3

• Ownership of a tract of land confers rights in the airspace above the surface - there is no fixed upper limit
• Furthermore, rights to airspace may be severed from the surface and allocated separately
• Limitation
  
  • A balance between the realistic needs of landowners and those of the public, for whom the air is common property
  • Landowner owns only as much of the space above the ground as he can occupy or use in connection with the land

Question 4

Didow Holding

Answer 4

Appeal allowed
- The court finds an unjustifiable interference with possession of
the owners of the land below the airspace.
- Landowner is entitled to freedom from permanent structures
which interfere with the actual or potential use of the land.
- The crossarms constitute a low-level intrusion that interferes with
Didow’s use of the land.
- Alberta Power has trespassed the airspace above Didow’s land

Question 5

Didow Reasoning

Answer 5

• overturned previous cases that found overhangs to not be a trespass because it was thought that any passing intrusion could then be deemed trespass
• adopted view from Leigh v Skyviews: a valid distinction exists between permanent structures which interfere with airspace and transient invasions by aircraft
• demonstrates that differing considerations apply between trespass and nuisance actions

Question 6

Manitoba AG v Campbell

Answer 6

• Airport opened after Campbell was already there farming the land
• The airport decided to extend its operations 1500 feet to accommodate larger aircraft used by the govt to fight forest fires
• Defendant Campbell refused to grant an easement for flight over his land
• When they went ahead anyways, he erected a tour on his farmland adjacent to the municipal airport. The tower creates a safety risk
• Tower is 74 ft in the air and is not currently being used (may be in the future by his son)
• Airport alleges it interferes with its operations and so Federal Minister withdrew permission for night flights to occur
• Manitoba AG seeks an order that Campbell dismantle the tower until trial as they are bringing a claim of nuisance
• There was a policy that just came into place which would permit municipal control of the land use in the area. The tower was constructed a few days before this policy came into play

Question 7

Campbell Issue

Answer 7

• Can we apply the latin maxim to this case (heavens to the earth)
• does Campbell’s right outweigh the safety of the public
• is the airport entitled to an interlocutory injunction (an order that the defendant dismantle the tower pending trial)

Question 8

Campbell Holding

Answer 8

• Held -> Campbell must dismantle the tower
• Concern for the public safety in the air and on the ground must prevail over the right of Campbell to throw a tantrum by putting the tower up
• Judge believed that the tower was built to simply prevent operations by the airport
• He also didn’t show any useful purposes for the tower, and just was an obstruction in the judge’s view

Question 9

Campbell Reasoning

Answer 9

• Plaintiffs may have a claim of nuisance
• Courts in the past applied the common law of nuisance to structures such as poles, silos
• The tower is a safety concern for the airport
• Pending trial the concern for the safety of public must prevail over the possible right of a disgruntled citizen
• The danger is not merely collision with a structure but also collision trying to avoid it
• Balancing of competing interests not an issue because the tower is useless, and defendant will be compensated if successful at trial

Question 10

Campbell Ratio

Answer 10

• A landowner cannot object to air traffic which does not interfere with the use and enjoyment of his property
• “until the issues in the action have been determined concern for the public in the air and the public on the ground must prevail over the possible right of a disgruntled citizen to imperil public safety by indulging in a frustrated tantrum”
• The plaintiff must show that he did not exercise malice, and had good intentions and reasons for putting up the tower

Question 11

Edwards v Sims Facts

Answer 11

• The Great Onyx Cave in Kentucky was developed as a tourist attraction by Edwards
• The cave also runs underneath his neighbors house
• Edwards was making money off of the neighbor’s property
• He wanted access to the cave, Edwards said no
• Sims then sued which led to a question of a survey to determine if it also runs under Sims’ property

Question 12

Edwards Issue

Answer 12

• Can Edwards be compelled to allow access to his property so that a survey can be taken that will demonstrate whether a trespass has occurred
• Owners can be compelled to allow an inspection if reasonable ground to suspect trespass exists
• Analogous to mining cases
• The court mentioned that there is no difference in principle between the invasion of a mine on adjoining property to ascertain whether or not minerals are being extracted from under the applicant’s property and an inspection of this respondent’s property through his cave to ascertain whether or not he is trespassing under this applicant’s property

Question 13

Edwards Holding

Answer 13

• Agreed with the maxim, found that both criteria were met to show reasonable grounds to order inspection
• Edwards’ appeal was dismissed and the survey will happen
• Even though Lee had no access to the cave under his land, he was entitled to prevent further trespassing and also to be compensated for prior acts of trespass

Question 14

Edwards Reasoning

Answer 14

• Lee must meet the burden to show the bona fide claim exists by alleging facts sowing a necessity for inspection
• Because Edwards’ property is to be inspected he must be given a reasonable opportunity to be heard

Question 15

Edwards Ratio

Answer 15

Person applying for inspection must 1) show a bona fide claim and a necessity for inspection, the party whose property is being inspected must 2) have an opportunity to be heard in relation to that